⦿ CASE SUMMARY OF:
Alhaji Abubakar v. The Military Governor Of Lagos State (2004) – CA
⦿ LITE HOLDING
The interlocutory application was granted being that the original suit is still pending.
⦿AREA OF LAW
– Administrative Law
– Reply brief.
– Interlocutory injunction.
– Interlocutory appeal.
Alhaji Abubakar Abdullahi
Alhaji Abubakar Abdullahi & Sons
The Military Governor Of Lagos State;
The Commissioner For Works & Transport;
The Attorney-general of Lagos State.
(2004) JELR 51514 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPLICANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The facts leading to the present application are stated in the applicants’ written submission. The applicants sued the respondents in the High Court of Lagos State, Ikeja Division in suit No. ID/611/86, claiming the sum of N1,600,000.00 as damages for trespass on their land and a perpetual injunction restraining the respondents from further acts of trespass on the said land.
On the 15/11/2000, the High Court delivered its judgment in the case, dismissing the applicants’ claims. Being dissatisfied, the applicant appealed against the said judgment in this court. While the appeal was still pending, the respondents served the applicants with a notice of revocation of their right of occupancy in respect of the land on 29/10/2001, (dated 8/ 10/01). The applicant’s counsel reacted to this notice by alerting the 3rd respondent on the pending appeal in respect of the land, the subject of the revocation notice. The respondents however, still went ahead to revoke the applicants’ right of occupancy despite their knowledge of the pending appeal. Hence the present application for interlocutory injunction by the applicants against the respondents dated 30/4/02 and filed on 2/5/02 as reproduced above.
By a motion on notice dated 30/4/2002 and filed on 2/5/2002, the applicants applied to this court for the following orders: “(1) An order of interlocutory injunction restraining the respondents, their privies, servants and/or agents from taking any steps even (sic) by themselves, their servants, privies or howsoever otherwise, towards giving effect to the purported revocation/acquisition of the plaintiffs’ certificate of occupancy, or entering, and/or taking possession of the applicants’ land, situate at Mulero, Agege, Agege Local Government, Lagos State, part of the parcel of land, the subject matter of this suit, pending the determination of the appeal filed herein. (2) And for such further or other orders as this honourable court may deem fit to make in the circumstances.”
The application was brought pursuant to section 16 of the Court of Appeal Act and the inherent jurisdiction of this Honourable Court. It is also supported by a 15 paragraph affidavit deposed to by the 1st appellant. Attached to the affidavit in support are some annexures which include the notice of appeal (exhibit AA1), the notice of revocation of right of occupancy (exhibit AA2), and some letters of correspondence between the applicant’s counsel and the office of the Attorney-General of Lagos State (exhibits AA3 – AA7). A further affidavit of 5 paragraphs was also filed in support of the applications on 3/5/02.
In their reactions to applicants’ motions, the respondents filed a counter affidavit on 11/9/2002 – deposed to by one Felix Adeoye, a litigation officer in the office of Attorney-General of Lagos State, at Ikeja Lagos.
After the filing and exchange of all affidavits, counter affidavits and the reply, this court ordered the learned counsel for the parties to file written submissions in respect of the motion.
They duly complied with the court’s order or directive.
1. Whether the applicant are to bring their application before the Trial Court first?
2. That the act which the interlocutory injunction wants to stop has already been carried out?
⦿ RESOLUTION OF ISSUE(S)
IN RESOLVING THE SUIT, THE COURT STATED, “In the final result and from my above review of the merits of the present application, I am of the firm view that this is an appropriate case where this court can make a preservative order to maintain the status quo between the parties in the form of an order for an interlocutory injunction in favour of the applicants. The application has therefore succeeded and it is ordered as prayed for by the said applicants in their motion on notice referred to above.”
“Accordingly, I hereby make an order of interlocutory injunction restraining the respondents, their privies, servants and/or agents from taking any steps either by themselves, their servants, privies or howsoever otherwise towards giving effect to the notice of revocation/acquisition of the applicants’ right of occupancy or entering or taking possession of the applicants’ land situate at Mulero, Agege, in Agege Local Government, Lagos State which is part of the land, the subject matter of this suit and appeal pending the final determination of the appeal filed herein by the said applicants.”
1. ISSUE 1 WAS RESOLVED AGAINST THE RESPONDENT BUT IN FAVOUR OF THE APPLICANT.
i. Since there was a judgment (exhibit AA9) against which the applicants have appealed to this court and their appeal is still pending, they are entitled to bring their present application for interlocutory injunction directly to this court and there is no need for them to go first to the lower court for a similar relief and to prove that the said lower court had refused their earlier application as suggested by the respondents under their first issue for determination. The respondents’ arguments or submissions under the saidissue is therefore misconceived and without any substance or merit. I hereby hold so.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPLICANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is trite that the remedy of interlocutory injunction is for the purpose of preventing an injury or impending injury during or throughout the period of the pendency of litigation (either at first instance or on appeal) until the court will be in a position to either grant or refuse a permanent relief or remedy on the merit. For that reason, an injunctive order is not a proper remedy and cannot be granted for an act which has already been carried out or completed as in the present case.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
The applicants’ learned counsel also filed a reply submission on points of law dated 29/8/03 and filed on 4/9/03. It is however not clear whether the reply submission of the applicant was filed within any stipulated time or with the sanction, or leave of this court. This is because in the absence of any sanction, leave or extension of time by this court for its filing, it was apparently filed out of time when compared with the respondents’ submission which as already stated, was filed on 30/5/03. Thus there was a lapse or gap of 4 (four) months before the filing of the said reply submission. By this long lapse of time before filing the reply submissions and the absence of any explanation as to whether its filing was sanctioned or permitted by this court, I am in a very serious doubt on its validity or competence and therefore reluctant to accept or rely on it in my ruling. In a normal situation or in an appeal, the reply brief is normally filed in a shorter time or period than the main briefs (i.e. 15 days) under the rules of the court. In the present case, where the parties are directed to file written submissions, the same rule should apply and where a reply written submission is filed out of time, there must be a prayer for extension of time to file it and or for its deeming. For this reason, I will not hesitate to discountenance the reply submission filed by the applicants as described above. – Adamu, JCA. Alhaji v. Military (2004)
The applicants have the right to apply directly in this court for an interlocutory injunction as they have done without necessarily going first to the lower court with similar application. It is not like the case of an application for stay of execution A under which they are required to do so before coming here. – Adamu, JCA. Alhaji v. Military (2004)
Again, the fact that the applicants have sought for and obtained an order of stay of execution from the lower court whether in respect of the present case or the previous one is not also material or relevant to the present application. It is to be observed that even where an applicant has obtained an order of stay in the lower court, he can still bring another fresh application in this court if he is not satisfied with the earlier order of the said lower court. Although there is similarity between an application for interlocutory injunction and that for stay of execution which are also governed by the same principles, it is pertinent to observe that in the instant case, the applicants are not applying for both reliefs or even as alternative reliefs. They cannot therefore be accused of an abuse of the process of the court or of multiplicity of action as the respondents are trying to suggest. – Adamu, JCA. Alhaji v. Military (2004)