Interlocutory Injunction

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ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, ANAMBRA STATE & ORS. V. ROBERT C. OKAFOR & ORS.

citation: LGC-1075 (21/2/1992)

In The Supreme Court of Nigeria

On Friday, the 21st day of February, 1992

SC.172/1988

Before Their Lordships

MUHAMMADU LAWAL UWAISJustice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGUJustice of The Supreme Court of Nigeria

OLAJIDE OLATAWURAJustice of The Supreme Court of Nigeria

UCHE OMOJustice of The Supreme Court of Nigeria

BOLARINWA OYEGOKE BABALAKINJustice of The Supreme Court of Nigeria

Between

4. Whether the doctrine of lis pendens operates to nullify an act done during the pendency of a suit particularly when such act is intangible and incapable of changing the character and the nature of the res. 5. Whether the Court of Appeal was right in granting a stay of execution merely on the ground of the nature of substratum and the grounds of appeal when the plaintiffs/applicants did not disclose any special circumstances in their affidavit to warrant a stay of execution and no order positive or otherwise was made by the lower court. The plaintiffs/respondents (hereinafter referred to as “respondents” simpliciter) also formulated five issues for determination differently as follows:- 1. When there are an appeal over a decision of the court and a motion for a stay of execution of the judgment appealed against whether a party to the appeal can take any step which will frustrate the hearing of both the appeal and the motion or foist upon the court a situation of complete helplessness. 2. If the answer in issue No.1 is in the negative and the party takes the step whether the Court or the Court of Appeal in its inherent power can set aside the step so taken in order that the appeal may not be rendered nugatory or the jurisdiction of the Court hampered in determining the motion before it. 3. Whether in invoking the powers of the Court under issue No.2 above the party aggrieved by the act should do so by a declaratory action only or can come by way of a motion. 4. Whether the issue of the recognition of the 5th defendant by the 1st and 2nd defendants/appellants did not fall within the ambit of the plaintiffs’ /respondents’ claims before the trial Court and the Court of Appeal. 5. Whether the issue of who had the right to select and present the 5th defendant for recognition was not before the Court and if the answer is in the affirmative whether that right is not a res even though intangible capable of being preserved by the court. Only the 3rd and 5th issues raised by the appellants and the 5th issue raised by the respondents do not dovetail and will therefore be considered separately, if necessary, All the other issues can be disposed of by reference to the appellants’ formulation. It is convenient to begin a consideration of the several issues raised in this appeal by disposing of the fifth issue formulated by the appellant. This is because although an application (CA/E/74M/87) for a stay of execution of the ruling/judgment of the Awka Division of the Anambra High Court in Suit No. AA/70/86, was duly filed and argued at the Court of Appeal (Enugu Division), considered by it and commented upon, no order of stay was in fact made by the Court. The highest it went was to state in its ruling (vide p.104 of the records of proceedings) thus- “It is therefore my view that having regard to the nature of the substratum of this appeal and the grounds of appeal filed, the plaintiffs/applicants should have been granted a stay of execution by the lower court. It does not matter how that relief was described. The clear intention was to protect the res in the action and suspend the rights of the respondents that would naturally flow from dismissal of plaintiffs/applicants’ action,” Thereafter, very much irked by the granting of recognition by the 1st to 3rd appellants it proceeded to consider same at length, concentrating thereby on the second motion filed before it- CA/E/331M/87; and after castigating the 1st to 3rd appellants, made its orders at the end of its ruling on the issue of recognition (vide p.108 lines 6-11). On the attention of appellants’ counsel being drawn to this, in the course of his reply, he withdrew the appeal of his clients against a non-existent order. The many sub-issues canvassed by the Court of Appeal as to whether there was any action/order to stay before it, having regard to the dismissal by the High Court (Awka) of the respondents’ action on the ground that they have no locus standi to institute same, to wit, (a) whether special circumstances have been shown to justify the granting of a stay of execution, (b) whether the res in the action will be destroyed by a refusal to grant a stay or (c) whether the substratum of the case on appeal before it is the same as that on the application for a stay before it and that a refusal of the application will “in consequence denude the action of its substance”; are therefore regrettably no longer necessary for a determination of this appeal, and will therefore not be considered in the judgment. Suffice it to observe that the well known decisions of this court in Kigo (Nigeria) Ltd. v. Holman Bros (Nigeria) Ltd. & Ors (1980) 5/7 S.C. 60; Shodeinde & Ors. v. Ahmadiya Movement-In-Islam(1980) 1/2 S.C. 163(175); Vaswani Trading Co. v. Sam/akh & Co. (1972) 12 S.C. 77 Balogun v. Balogun (1969) 1 All N.L.R. 349; were fully canvassed. ……………………………D…………………………… What is left of appellant’s issues 1, 2 and 3 may now be succinctly reformulated to ask whether the Court of Appeal can make an order setting aside the recognition of the 5th appellant by the 1st to 3rd appellants in any circumstances or in the particular circumstances of this case. If it can do so in either event, whether it can be done on the basis of the motion before it and/or make the specific orders which it finally made. It is conceded by appellants’ counsel that the courts can in exercise of their supervisory power, but only by way of a declaratory relief, declare a recognition granted by the Executive to any chief or traditional ruler as contrary to the law and/or otherwise void and of no effect. It is however the strong submission of appellants’ counsel also that the primary functions of recognizing (or de-recognizing) traditional rulers is that of the Executive, and not that of the Court. For this submission counsel has referred to the provision of the Traditional Rulers Law 1981 of Anambra State. Section 7 of that Law provides that “Where a Traditional ruler of a town or community is presented to the Government under the provisions of section 5 or section 6 of this Law the Government may, in accordance with the provisions of this law, recognize such a person as a traditional ruler of the town or community,” If, in exercise of its secondary/supervisory function, the court, on proper application made before it, declares the recognition void, the Law also gives the Executive the powers to carry out the order of the court and de-recognizing such a traditional ruler under the provisions of section 10 of the aforementioned Law which states that “10. Notwithstanding anything contained in this Law, the Government may suspend or withdraw the recognition of a recognized chief or traditional ruler if the Government is satisfied that such suspension or withdrawal is (a) necessary having regard to (b) necessary in the interests of peace, order and good government” (Note: italics mine) Order and good government demands that the declarations of the Courts as to what the law is, should be carried out by the Executive, over which the superior courts of this country can exercise judicial powers having regard to the provisions of section 6 of the Constitution of the Federal Republic of Nigeria (Enactment) Act 1979. In support of these submissions counsel has also cited and relied on Governor of Imo State v. Anosike (1987) 4 N.W.L.R. (Pt. 66) 663 (671). So far so good. It is however the further submission of appellants’ counsel that the courts cannot exercise any powers with respect to the withdrawing or revoking of recognition until after the Governor has exercised his powers under section 10 because this would mean the infringement of the powers of the Governor under the Constitution and lead to a conflict between the Judiciary and the Executive. At pages 21 and 22 of his brief appellants counsel concludes on this further submission thus – “It is submitted that S.6(6)(b) and S.236 of the Constitution shall not come into effect until the Governor has exercised his power under S.10 of the Traditional Rulers Law 1981. For it is only by the exercise by the Governor of his power under S.10 that a dispute will arise conferring jurisdiction on the courts. Since the Governor has not exercised his primary function of withdrawing or revoking the recognition of the 5th defendant it is the appellant’s contention that the Court of Appeal or indeed any court is without jurisdiction to interfere to revoke the recognition of the 5th defendant or to set it aside.” (Note: Italics mine) If by this submission appellants counsel is saying that no action to declare an act of recognition by the Governor illegal can be taken in court until and after he has on his own suspended or de-recognized the traditional ruler recognized, then he is entirely mistaken. This is certainly not the position of the law. Once the Governor has exercised his executive powers of recognition under section 5 of the aforementioned law, any person who feels his rights are infringed thereby can take action in the High Court, which in exercise of its jurisdiction under section 236 of the Constitution, is empowered to entertain same. There is nothing in the provisions of section 6(6)(b) and section 236 of the Constitution which prevents or delays the right to litigation UNTIL the Governor further exercises his undoubted prerogative to suspend or derecognize under section 10. Section 6(6)(b) of the Constitution on which appellants’ counsel is relying specifically provides that “6. The judicial powers vested in accordance with the foregoing provisions of this section (b) shall extend to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person” ……………………………E…………………………… (Note: Italics mine) I see nothing but a confirmation of the right of an aggrieved citizen to go to could against a fellow citizen and or government after his right has been infringed in this provision. It certainly does not justify any view that after having been aggrieved by a violation of his rights under section 5 of the Traditional Rulers Law, any person, assuming of course he has the necessary locus standi, cannot take his grievance to court until after the exercise by the Executive of its powers under section 10 of the aforementioned Law. The authorities cited and relied on by appellant’ counsel, to wit, (a) Merchant Bank v. Federal Minister of Finance (1961) 1 All N.L.R. 598; (1961) 2 SCNLR 272 and (b) James Egbuson v. Joseph Ikechukwu (1977) 6 S.C. 7 at 34, do not support his submission. In those cases the courts were called upon to interfere with powers given exclusively to the Minister to be exercised after satisfying himself of certain conditions, before he had even exercised such powers. They in fact support the submission that there cannot be any challenge of the Governors action either under section 5 or section 10 of the law until he has exercised his power under either section. But once the Governor has exercised that power I repeat that there is nothing to prevent a dissatisfied citizen from challenging that decision. The statement of Unsworth FJ. In Merchant Bank Ltd. v. Federal Minister of Finance (supra) which counsel relied on, that “In matters involving the exercise of statutory power the function of the courts begin only if and when it is alleged that the power has not been exercised in accordance with law” (Note: Italics mine) is fully satisfied in such circumstances. The Courts in conclusion can therefore in proper circumstances declare a recognition illegal after the Governor has exercised his primary powers of recognition. The Governor in the absence of a successful appeal against such a decision, will then be expected to exercise his power of de-recognition under section 10 of the law aforementioned without being called upon so to do. In Chief Eze Orisakwe v Governor of Imo State & Ors (1982) 3 N.C.L.R. 743, relied on by appellant’s counsel, it was clearly decided that the power of the Governor to withdraw recognition is not absolute. Where it is exercised arbitrarily and without recourse to procedure provided by enabling statute, his exercise of power can be challenged. It was successfully challenged in that action and the withdrawal of recognition declared null and void and of no effect. An ancillary question for consideration here is whether, in any action challenging recognition the plaintiff(s) should seek setting aside of recognition simpliciter or a declaratory order to the effect that the recognition is null and void. The better view seems to be that such a challenge should be made by way of declaratory action vide Chief Orisakwe vs Governor of lmo State and Ors. (supra); Governor of Imo State vs Anosike (supra) Onuzulike vs Nwokedi (1989) 2 N.W.L.R. (Pt. 102) 229; Uwegba v. Attorney-General of Bendel State (1986) 1 N.W.L.R. (Pt. 16) 303 (304). Thereafter the Governor will be obliged in obedience to the Courts order to de-recognize the traditional ruler where the challenge is successful. I will now proceed to consider whether even if the Court of Appeal can make an order setting aside the recognition of the 5th appellant it can do so pursuant to an application by way of an interlocutory application. Furthermore, even if a motion is appropriate, whether the orders made by the Court of Appeal are proper. Normally an interlocutory application such as the one now being considered (CA/E/331M/87) is made to maintain the status quo pending the determination of the substantive action (appeal). In the present case however the order sought is to set aside an action that has already taken place. It has been held many times by the Courts that such interlocutory application (usually for grant of injunction) is not perceived as a proper remedy for an act which has already been carried out, and will not be granted where even the act complained of is irregular vide John Holts Nigeria Ltd vs Holts African Workers Union of Nigeria and Cameroon {1963) 1 All N.L.R. 379; (1963) 2 SCNLR 383 Uwegba v. Attorney-General of Bendel State (1986) 1 N.W.L.R. (Pt.16) 303 ( ratio 27); Governor of Imo State vs Anosike & Or (1987) 4 N.W.L.R. (Pt. 66) 663 (ratios 12 and 13). The last two cases are Chieftaincy matters where actions of the Executive re recognition were being challenged. The Courts refused interlocutory applications on the ground, inter alia, that the acts complained of have already been performed. The reason however why the Court of Appeal in the instant case granted the application sought and made the orders complained of is that the 1st to 3rd appellants, before the Court of Appeal considered the appeal filed against the decision of the High Court (Awka) on the issue of locus standi, recognized the 5th appellant as the Obi or traditional ruler of Awka. The Court of Appeal (per Oguntade J.C.A) expressed its displeasure in the following words- “I am unable to agree that the respondents acted properly. They pulled the carpet from under the feet of the lower court by doing those very things which the applicants were praying the court at the time to restrain. By the same token they sought to put this Court into a position of helplessness so that even if we decide the appeal in favour of applicants such decision will be rendered nugatory. They thus sought to frustrate the Constitutional right of appeal which the applicants derive from the fundamental Law of Nigeria. They have sought to confront us with a fait accompili and usurp in addition the function of the court.” ……………………………F…………………………… (Note: Italics mine) Whether the Court of Appeal was right in holding that the 1st to 3rd appellants put it in a position of helplessness and/or whether the issue of recognition of 5th appellant was properly before it, may be considered briefly, if necessary, later in this judgment. For the moment, the question that has to be answered is whether Motion No. CA/E/331M/87 could be properly entertained by the Court of Appeal. Appellant’s counsel has argued that it cannot because inter alia it raises a substantive issue which can only be considered by way of substantive action, and that the very issue being canvassed by the motion is the subject matter of a pending action in the High Court at Awka – Suit No.E/36/87. Counsel for the appellants did file preliminary objections to that effect before the Court of Appeal as set out earlier. The main reason for this submission as to the need for a substantive action being, as canvassed earlier, that the power sought to be set aside being primarily that of the Governor can only be properly controlled by way of seeking declaratory reliefs or by way of application for administrative review, to wit, applying for mandamus, certiorari or prohibition, as the case may be. An ordinary motion it is submitted is inappropriate for this purpose. The answer of the respondents in their brief is to recount the history of the contentions between the parties, and to submit that the Court of Appeal acted correctly the way it did because the appellants were trying to overreach the court by the 1st to 3rd respondents granting recognition to the 5th respondent, which it submitted (and the Court of Appeal agreed) was an issue before it. Counsel cited in support the “Self-help” cases of Emeshie v. Abiose (1991) 2 N.W.L.R. (Pt.172) 192 (200); Ojukwu v. Governor of Lagos State (supra); Vaswani vs. Savalakh (1972) 12 S.C. 77. Counsel for the respondents, F.R.A, Williams, S.A.N., in oral argument before us, has submitted that the court has the power to undo any act which a party does, where there is pending before the court a prayer that such an act should not be done. This power covers not only real property but all matters, and is intended to uphold the rule of law. He cited and relied on Governor of Lagos State v. Ojukwu (1986) 1 N.W.L.R. (Pt. 18) 621 (637 paras G to H); Saraki v Kotoye (1990) 4 N.W.L.R. (Pt.143) 144 (174 para. F and 185 paras F. to H). I entirely agree with respondents counsel that the Courts must jealously guard their powers to supervise and where necessary discipline the Executive if it errs. The courageous stand of the Courts in the Ojukwu v. Governor of Lagos State case (supra) is what is expected of the Courts. There is therefore no doubt whatsoever that in a proper case, where the other side is guilty of “executive lawlessness” or have acted in such a way as to put the Court of Appeal in a real “state of helplessness” or by its action rendered its decision “nugatory”, it can grant a mandatory (but interlocutory) injunction, even by way of a motion, to force the executive to retrace its steps vide Ojukwu’s case (supra). But is this a proper case? I do not think so for a number of reasons. Firstly, because the issue of recognition or non-recognition of the 5th defendant was not clearly before the Court of Appeal. The appeal before it dealt; rather with whether there was locus standi in respect of an action concerning the validity or otherwise of the Awka Chieftaincy Constitution and at best the selection as opposed to recognition of the 5th respondent. But even if the issue could be deduced from the affidavit filed by the parties, as the Court of Appeal seemed to have concluded, the second reason why it should not have considered this application is that there was pending before a court of competent jurisdiction (the High Court at Awka), a suit (E/36/87) in which the issue of recognition of the 5th appellant was categorically challenged; and was not one to be deduced from the claims/pleadings/affidavits. The first head of claim in that action reads – “A declaration that the purported recognition by the 1st defendant of the 5th defendant as the traditional ruler of or Eze Uzu or Obi of Awka is illegal, unconstitutional null and void, and of no effect. ……………………………G…………………………… What is more, that action was filed ten months, before the motion it entertained was filed in the Court of Appeal. Counsel for the appellants (respondents in the application before it) drew the court’s attention to this action, yet it proceeded nonetheless to dispose of the subject matter of that pending action in a lower court on the basis of an interlocutory application brought before it. The court below by its action condoned what was in effect an abuse of process because the respondent here, with a substantive action in the High Court, should not have been allowed, without withdrawing that action, to litigate by way of a motion or otherwise, the same subject matter. If the court below in its anger at the action of the appellants permitted such action, it should not have forgotten that the pending case in the High Court. Awka, after being heard, may be the subject matter of an appeal to it, and that it should therefore not place itself in a position of judicial embarrassment. Finally, was the Court of Appeal really put in a position of helplessness by the action of the 1st to 3rd appellants? Whilst the Court frowns on attempts by parties to overreach it in the course of a pending action, the recognition of the 5th appellant cannot be said to have had that effect on the Court. As Jacks, J.C.A. correctly observed in Governor of Imo State v. Anosike supra in setting aside an interim order of injunction granted by the High Court to restrain a chief recognized by the Government of Imo State from parading himself as or being recognized by the Government of Imo State and its agencies as traditional ruler of his autonomous community . “Paragraphs 8 and 12 deposed to the effect that it is the turn of Umunwawa who have selected and presented their candidate, one Mazi Abel H.O. Nwosu who is entitled to succeed to the stool. It is clear therefore that if the respondent could establish the above contentions at the trial the Military Governor may suspend or withdraw the recognition of the appellant by virtue of Section 10(a) of the relevant Law. Recognition of traditional ruler by the Military is not a perishable commodity.” He then proceeded to observe further in that case that pleadings having been ordered, the best course of action would be to accelerate the hearing of the suit. I entirely agree with him. The position in these chieftaincy cases is that if the person recognized is found to have been illegally or improperly recognized, the recognizing party will have to withdraw such recognition, and with that action the installation is automatically set aside, unless the illegality attaches only to the act of recognition. Even if the final act of a presentation of a certificate of recognition or a staff of office has been embarked upon, this must be withdrawn if the final judgment of the Court so requires. Whilst the continued act of some members of the Executive in seeking to overreach the court must continue to be deplored in the strongest terms, the court must not declare itself into a state of helplessness when it has abundant armoury to decide the fray. Respondents’ counsel has drawn the attention of this Court to my ruling to Adetona v. Attorney-General of Ogun State and Ors. FCA/1/110/82, delivered on 21/8/83, in which J deprecated in strong terms the practice of government and/or their agencies treating the courts’ order of injunction with levity (if not outright contempt). There was before the Court of Appeal on that occasion, an application to set aside “the purported deposition of the plaintiff – the Awujale of Ijebu Ode by order of the Governor of Ogun State”, which order was made after submission of the Report of a Commission of Inquiry which the Court of Appeal had ordered to stop further proceedings and not to submit any report to the Governor pending the determination of the application for interim injunction. All these and other actions taken to prevent the Governor acting arbitrarily notwithstanding, he proceeded to receive the Report and immediately announced the deposition of the Awujale. These facts and my chastisement notwithstanding J stated thus: “In the present case, I do not think any useful purpose will be served by setting aside any actions of a State Government which has already been carried out, where these do not dispose of the matter. A different situation may have arisen had a new Awujale been appointed. I wish to emphasize that this Court will not hesitate to set aside any offending order in an appropriate case.” Similarly in this case, since the order sought does not dispose of the matter and for the other reasons set out by me earlier. I am of the view that the issue of recognition should not have been decided on the basis of the interlocutory application entertained by the court below. The most serious fault however in the proceedings of the Court of Appeal are the orders that it finally made. They are set out in full thus: “The act of 1st and 2nd defendants/respondents in recognising the 5th defendant/respondent when they are aware an appeal is still pending and while application for stay of execution was pending before the lower court is null and void and of no effect whatsoever. I ought to set aside the recognition. It is accordingly set aside. I also make an order restraining the 1st and 2nd respondents, their servants and or agents from recognising the 5th defendant/respondent as the traditional ruler of Awka pending the determination of this appeal.” Appellant

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