Alhaji Amodu Olaleye Oyeyemi & Ors v. Irewole Local Government, Ikire & Ors

The main issue in this interlocutory appeal is whether the Court of Appeal, Ibadan Division, was right in the way and manner it exercised its discretion in granting an order of

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interlocutory injunction pending appeal in favour of the plaintiffs on the facts and in the circumstances of this case.

In the substantive suit, the parties put forward their diverse claims and counter claims relating to the Chieftaincy stool of the Akire of Ikire. The main issues in contention in the suit related to:-

(i) Whether the Chieftaincy Declaration of 1958 was valid, particularly whether it included Aketula Family of Ikire as a separate and distinct ruling house;

(ii) The number and identity of the Ruling Houses;

(iii) The order of rotation;

(iv) The number and identity of the Kingmakers;

(v) Whether Ladekan Ruling House was the next entitled and eligible to produce a suitable candidate for the vacant stool of Akire of Ikire;

(vi) Whether the defendants should be restrained from calling for nomination, appointment or installation of any candidates, save those from Ladekan Ruling House;

(vii) and according to the counter-claim of the 7th defendant, whether the plaintiffs should be restrained from using the 1958 Akire of Ikire Chieftaincy Declaration for appointing, or installing any person from either Ladekan or Aketula to fill the vacancy.

After trial, the learned trial Judge found that:-

(1)   The 1958 registered Chieftaincy Declaration pertaining to the Akire of Ikire does not contain the true customary law of lkire in that:-

(a)   it wrongly included Aketula Family as one of the Ruling Houses in Ikire:

(b)   it was wrong in the order of rotation whereby the

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Ruling Houses would fill any vacancy in the Chieftaincy whenever it occured;

(c)   that Lambeloye, and NOT Ladekan Ruling House was the next entitled to produce the next Akire of Ikire.

The plaintiffs, that is, representatives of Ladekan Ruling House, aggrieved by the decision of the High Court then appealed to the Court of Appeal. During the pendency of the appeal, the plaintiffs filed in the High Court applications for a stay of execution of the judgment, which applications were dismissed by the learned trial Judge, Olowofoyeku, J., because the applicants failed to show any special circumstances for the grant of a stay.

The plaintiffs by their motion dated 19th day of June,1990, applied to the Court of Appeal for an order of:

(i)   a stay of execution of the judgment of the High Court: and

(ii)  Interlocutory injunction restraining the 1st-5th and 7th defendants, their agents/servants from taking any step or further step whatsoever in installing any person or any member of the 7th defendants Lambeloye Ruling House as the new Akire of Ikire pending the determination of the appeal filed in the suit.

I wish to pause here to make some observations on the application before the court. The first prayer was one which the learned trial Judge had refused on the grounds that the applicants had shown no special circumstances and that, as it was so, he would not, on principle, deprive the successful party of the fruits of the judgment in his favour. He relied on the case of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77 for his decision. It does not appear that this ruling and refusal of a stay have been

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appealed against. The plaintiffs merely appealed against the judgment in the main suit and thereafter applied for a stay and an interlocutory injunction.

Although it is settled that a court of record has an inherent power to order a stay of execution of its own judgment (for which see Shittu v Ogunremi v. Dada (1962) 1 All NLR 663. (1962) 2 SCNLR 417, and section 18 of the Court of Appeal Act, 1976, appears to give a similar power to the Court of Appeal), the question is whether the power of stay could be exercised in this case where it has been refused by the High Court and there was no appeal against the order of refusal. The question is: could the Court of Appeal set aside the decision of the High Court against which there is no appeal upon a mere application? Fortunately, I do not have to decide this point in this appeal as the Court of Appeal expressed no opinion on the application for stay. As for the application for interlocutory injunction, I must note that it is an original motion not only because no similar application had been made to the High Court but also because what it set out to achieve was, in effect, the opposite effect of the High Court decision.

In any event, the Court of Appeal after enunciating the principles that ought to guide it in its decision in the matter without actually finding whether or not those principles had been established granted the application for injunction but said nothing about the application for a stay of execution. It is against the grant of the order of interlocutory injunction that the 3rd, 4th and 7th defendants have appealed further to this Court upon three grounds of appeal. From those grounds, learned counsel

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on their behalf formulated the following issues for determination in this appeal, namely:-

“2.01   Whether or not in the circumstances of the prayer for Stay of execution/interim injunction the learned Justices of the Court of Appeal have exercised their discretion judicially and judiciously in restraining the 1st to 5th and 7th Defendants/Respondents/Appellants from installing the Oba-elect in view of their findings.

2.02   Was there any order made by the Ife High Court enforceable by writ of execution? Or by injunction?  And if there was any, was that stage passed before the motion for stay/injunction was filed?

2.03   Was the installation of an Akire – elect the subject matter of the claims before the High Court to be preserved or protected by the Court of Appeal?”

The formulation on behalf of the respondents was substantially the same.

Learned counsel for the appellants submitted that on the findings before the court, there were no basis for the grant of the order of injunction and so it was illogical. He submitted that on the facts established before the court, it ought to have refused the order. He submitted that exercise of a judicial discretion was as a matter of law based on set rules and not a matter of arbitrary decision. So the grant of the order in spite of its findings was a wrongful exercise of judicial discretion which resulted in denial of justice, he submitted. He cited Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627, at 644. He also submitted that as the plaintiffs’ claims were dismissed on all the aspects relevant to this appeal they were not entitled to an injunction: Ogbonna v. A-G., Imo State (1989) 5 NWLR

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(Pt.121) 312. A party can only be entitled to stay or an injunction on an issue on which he has appealed. As from “The part of the judgment appealed against”, the respondents did not appeal against the issue which forms the subject of the injunction, they were not entitled to the order appealed against. Above all, even if they did, the dismissal of the claim for injunction would disentitle them to an order of interlocutory injunction pending appeal. He cited: Okafor v. A.G, Anambra State (1988) 2 NWLR (Pt.79) 735 at 751; Registered Trustees of the Lagos State Taxi Drivers Association v. Lagos State (1990) 3 NWLR (Pt.149) 711 at 720. He submitted that the discretion was not exercised judicially but was arbitrarily and the manner or exercise of it was not fair to both parties. So this court has no alternative but to reverse it.

On the second issue, he submitted that as the judgment of the learned trial Judge was merely declaratory: so it cannot be stayed or enforced by an order of injunction. Rather, it can be the subject of a subsequent enforcement action: Okoya v. Santilli (1990) 2 NWLR (Pt.131) 173 at 224. Also he pointed out that the parties who should do the act restrained, that is, install the member or the 7th defendant’s family were not before the court and so the order ought not have been made in vain. The approval of the appointment was not an issue before the Court of Appeal, he contended. On the 3rd issue, he submitted that the “installation of an Akire” was not the res in either claims or counter-claims before the court, it was wrong for the Court of Appeal to stop the installation of an Akire. He, therefore, submitted that a non-issue in a suit cannot be rightly a subject of either a stay of execution or an

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interlocutory injunction pending an appeal. However, having found that the installation would not render the appeal nugatory, it was a wrongful exercise of its judicial discretion to have turned round to restrain the installation by all interlocutory Injunction pending appeal.

In the respondents’ brief. Learned counsel on their behalf submitted that the order made, being one for the maintenance of the status quo, was a right of the respondents and a judicious step which did not occasion a miscarriage of justice to the parties before the court. He pointed out that the affidavits before the court, showed that the judgment of the High Court had declared the 1958 declaration defective and the court did not proceed to make what amounted to a chieftaincy declaration in the sense of: Yaya Adigun v. Oyo State (1987) 1 NWLR (Pt.53) 678 and Adeyemo & Anor v. Popoola & 2 Ors, (1987) 4 NWLR (Pt.66) 578. So, till installation of an Akire which the appellants were rushing: through was an obvious illegality because they were using persons who were not kingmakers. It was therefore an exercise which the Court of Appeal had a duty to stop. He submitted that there was no rule of law which stated that once an application for a stay of execution failed, then one for an injunction must also fail. He pointed out that the court did not grant the application for stay of execution of the judgment: all that the court did was, after considering the circumstances of the case, to grant an injunction for a preservation of the status quo. He cited Obeya Memorial Specialist Hospital & Anor. v.  A-G. of the Federation & Anor. (1987) 3 NWLR (Pt.60) 325: (1987) 7 SCNJ 42 at 44. He contended that the point raised in paragraphs 3.11

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to 3.14 of the appellants’ brief was more appropriate for the substantive appeal. He submitted that the authorities cited by the appellants were not ill point. On the 2nd issue, he submitted that the Court of Appeal, like any other superior court of record, had both inherent and statutory jurisdiction to grant a stay of execution or an order of injunction. The case of Sodeinde v. The Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1-2 S.C. 163 was all authority for grant of an order of interlocutory injunction or a stay of execution pending appeal, he submitted. The court could make such an order of injunction at any time: Richard Okechukwu v. Arthur E.N.D. Okechukwu (1989) 3 NWLR (Pt.108) 234. He submitted further that installation was indirectly in issue. On the 3rd issue, he submitted that the res was the filling of the vacancy in the stool of Akire of Ikire and so the order of interlocutory injunction was rightly made.

So many fundamental issues have been raised in argument for and against the order of interlocutory injunction pending appeal made that I deem it necessary to examine them in some detail and if necessary, restate the law.

The first observation I must have to make is that this is an appeal to this Court against the exercise of its discretion by the Court of Appeal, I must, Therefore, approach the appeal from the standpoint that it is not the discretion of this court, and so we cannot substitute our discretion for that of the Court of Appeal. But, like all appeals on exercise of its discretion by a lower court, we can review the exercise of it but should only interfere if the discretion was not exercised judicially and judiciously, that

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is, if its exercise was mala fide, arbitrary, illegal, or either by considering extraneous matters or by not taking into consideration material issues. On the whole, the question at all times is whether its exercise was in accordance with the dictates of justice. See on these – The Resident, Ibadan Province v. Lagunju (1954) 14 WACA 549 at 552; Aruna Kudoro v. Alaka (1965) 1 FSC 82 at 83: (1956) SCNLR 255: University of Lagos  & Anor v. Aigoro (1985) 1 NWLR (Pt. 1) 143 at 148.

In particular, I must note that it is of the very essence of the proper exercise of a judicial discretion that it be exercised in accordance with any relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humour, or sentiment see: Rooke’s Case (1598) 5 Co. Rep. 99b. See also Sharpe v. Wakefield (1891) A.C. 173. H.L. per  Lord Halsbury at p.173.

Now the learned Justices of Appeal in their unanimous decision set for themselves the criteria for deciding the issue raised by the application. They held:

“In an application for an interlocutory or interim injunction the applicants must establish a probability of a strong prima facie case. That he is entitled to the right of whose violations, he complains, and subject to this being established, the governing consideration is the maintenance of the status quo pending the appeal.”

But they held:

“Throughout, the learned counsel for the applicants had not shown us that the applicants have a strong or prima facie case to be argued in the appeal. He has also not shown in what way the installation of the Oba elect will

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render his appeal nugatory. I do not think that the chance of the applicants shall be blocked by the installation being carried out per se,”

Regrettably, their Lordships did not find that the applicants had established a prima facie, less a strong prima facie case, that they were entitled to the right which they claimed. Rather they clearly found that they did not. Worse, they found that granting the order sought would not render the appeal, if successful, nugatory. Yet, in what looked like a dramatic summersault, they held:

“I think that the justice of the case is better met by this court exercising its power to preserve the res by maintaining the status quo as at today the 14/2/91. Accordingly, it is hereby ordered that the 1st to 5th and 7th respondents shall not take any further steps for the installation of any person or member of the 7th respondent’s Ruling House as the Akire of Ikire or for filling the vacancy in the Akire of Ikire Chieftaincy”

It appears to me to be incontrovertible that the order of injunction made did not flow logically from the above conclusions. Needless to state that every decision of a court of justice should not only flow logically from the conclusions of facts and of law made by the court but also be readily seen to be a logical result of such an exercise: Ojogbue v. Nnubia (1972) 1 All NLR 226. Also it must be noted that the whole purpose of an order to maintain the status quo is to preserve the res, the subject matter of the litigation, from being wasted, damaged, or frittered away, with the result that if the appeal succeeds, the result would be nugatory in that the successful appellant could only reap an empty judgment. When as in

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this case, a court of law finds that completion of a step sought to be restrained will not render the appeal. if successful. Nugatory, then there is absolutely no basis for making the order to maintain the status quo, Also, it is now the law that much as it has been accepted that it is useful to keep the relief of interlocutory injunction flexible and not subject to strict rules (see on this: Hubbard & Anor. V. Vosper & Anor. (1972) 2 Q.B. 84, and 96 and Evans Marshall & Co. Ltd. v. Bertola S.A. (1973) 1 All E.R. 992), it is necessary for an applicant, in order to be entitled to the order to satisfy the court that there is a serious issue to be tried whether in a court of first instance or of appeal: see American Cyanamid Co. v. Ethicon Ltd. (1975) 1 All E.R. 504. H.L. Obeya Memorial Specialist Hospital & Anor. v. A.G. of the Federation & A Anor. (1987) 3 NWLR (Pt.60) 325; (1987) 7 SCNJ 42 at 44; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419. In this case the Court of Appeal came to the conclusion that the applicant had no substantial grounds of appeal. That destroyed the very foundation of the order of injunction. Moreover, once the court made a statement of its guiding principles, it was bound to follow them for, by such a statement of guiding principles, the court had set for itself a yardstick of measurement for its correct exercise of its discretion. Having set those criteria and standards for itself, for it to turn, as it were, somersault and decide on how to exercise its discretion without using them as acid tests for the correctness. or otherwise, of the exercise was to decide arbitrarily. For as the celebrated Coke Well said in Rooke’s Case (supra) judicial discretion is

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” ….. a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences and not to do according to their wills and private affections…”

Compliance with rules, reason, and forensic logic are therefore but handmaids for a proper exercise of a judicial discretion, indeed to justice. So, for the court to have decided to exercise the discretion without subjecting it to the searchlight of reason  and logic which it had already identified was a violation of first principles. See Doherty v. Allman, 3 App. Cas. 728,  per Lord Blackburn. Indeed the only logical inference that could have followed from the conclusions of their Lordships that the applicants had not shown a strong prima facie case to be argued on appeal and that the installation of the Akire of Ikire during the pendency of the appeal would not render the appeal, if successful, nugatory was that the application failed and ought to have been dismissed. But rather, without giving reasons save the blanket expression that “the justice of the case is better met” by the grant of it, without stating how, their Lordships granted the order of interlocutory injunction pending appeal. In my respectful opinion, this naked and arbitrary exercise of its discretion was in grave error. For an invocation of judicial power in that way without logic and reason is bad for the law. I therefore agree with learned counsel for the appellants that the bases for the order did not exist.    I must express some reservation on the law of interlocutory injunctions pending appeal as stated by the court below.

First: It was wrong to have expressed the guiding

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principles for interim and interlocutory injunctions as if they were the same or interchangeable, whereas they are not. Also, their Lordships stated that to be entitled to the order, the applicants must show a strong prima facie case that they were entitled to the right of whose violations they complain. It is my view that by this, their Lordships fixed for themselves a higher standard than our present law on the subject calls for. For though the need for looking for a prima facie case or a strong prima facie case was the practice in olden days: see, for example Harman Pictures N.V. v. Osborne (1967) 1 WLR 723 and Preston v. Luck (1884) 27 Ch. D. 497 at 505, since the decision of the House of Lords in American Cyanamid co. v. Ethicon Ltd. (1975) A.C. 396 at 407-409, all that is now necessary is for the court to satisfy itself that there is a serious issue to be tried. On so satisfying itself, if it is a type of act that should be restrained by an injunction, it should proceed to consider the balance of convenience. If it is satisfied that it is on the side of the applicant, it should then extract from the applicant an undertaking as to damages.  These principles have been approved by this Court in the case of Obeya Memorial Specialist Hospital & Anor. V. A.-G. of the Federation & Anor. (1987) 3 NWLR (Pt.60) 325: (1987) 7 SCNJ 42 at 44: Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 at 441. In its inquiry as to whether these preconditions exist in any particular case, different approaches apply in cases of first instance as in appeals, though the basic principle is the same. Whereas in a case of first instance, the court can so satisfy itself from pleadings and such relevant uncontradicted affidavit evidence that are before the

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court. In an appeal such as this, it has to satisfy itself from the grounds of appeal and such affidavit before it, always bearing in mind that facts that there are presumptions that a trial Judge’s conclusions on primary facts and its decision are correct until set aside on appeal and that prima facie a successful litigant is entitled to the fruits of the judgment.

I am of the clear view that where, as in this case, a party has lost its claim to a declaratory relief and permanent injunction in a court of competent jurisdiction and having appealed. the appellate court, in an application for interlocutory injunction pending appeal which has not yet heard the appeal comes to the positive conclusion that the successful party has not shown that it has a prima facie case to argue at the appeal, the application for an interlocutory injunction pending appeal ought not to be granted.  I must bear in mind in this respect the fact that a successful litigant is, prima facie, entitled to the fruits of his judgment: The Arnot Style (1896) II P.D. 116. From the above state of the law and the facts. I am satisfied that even if the court below had directed itself properly by stating the guiding principles of law correctly, it should still have dismissed the application in view of the positive conclusions it had reached on the merits.

Another complaint on behalf of the appellants is that the subject matter of the appeal had no connection with the order of injunction sought and ordered by the Court of Appeal. It must be noted that in sum the judgment appealed from found that the 1958 Declaration did not represent the custom of lkire with respect to the rotation of the right to present candidates from the Ruling. Houses

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and the inclusion of Aketula as one of the Ruling Houses and the finding that Lambeloye, and not Ladekan. Ruling House was the next entitled to present a candidate. There was also an injunction concluded thus:

“Injunction restraining the plaintiffs, the First, the second and fifth defendants from making use of the 1958 Akire of Ikire Chieftaincy House Declaration and appointing/installing anybody from either Ladekan or Aketula families to fill the vacant stool of Akire of  Ikire,”

Now the relevant parts of the “Part of the Decision of the lower court complained of are in paragraph 4. From this and ground 2 of the grounds of appeal, it appears to me that the complaint is ill-founded. It is also not true that the installation of the Akire was not an issue either in the claim or counter-claim. Clearly, the injunctions sought in both included one against installation. So, much as it is true that for such an interlocutory injunction to be rightly ordered it must have a connection with the subject matter in litigation, (for which see: Scott v. Merchantile Accident Insurance Co. (1892) 8 T.L.R. 320), there is that connection in this case. This complaint has, therefore, no substance.

In the second issue learned counsel for the appellants has submitted that the judgment appealed from was merely declaratory. So, there can be neither an execution of it nor a stay thereof. In any event, the parties who would do the installation of the Akire were not before the court: so equity ought not to have ordered the injunction in vain. In his reply, learned counsel for the respondents submitted that the appellants were using persons who were not, in fact; kingmakers. So, and a court of equity

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ought to restrain the illegality.

I believe that the question of use of persons who were, in fact, not kingmakers could be disposed of rather briefly. It was an issue which could have been properly raised for trial in the High Court, but which was not. It is. therefore, not competent for the respondent to raise it al this stage without seeking and obtaining the leave of this court. As for the contention that the judgment was not of a nature which could be restrained by an injunction because it was merely declaratory, I must point out that both parties into this claim and the counter-claim claimed for declaratory reliefs as well as injunctions. The plaintiffs/appellants failed while the defendants/respondents succeeded. So, although this court decided in Chief R.A. Okoya v. S. Santilli & ors, (1990) 2 NWLR (Pt.131) 173 at 224 & 228 that because a declaratory judgment cannot be enforced by execution but by a subsequent proceeding in which the declared right which has been violated can be enforced, there cannot be a stay of execution thereof, the position is different in this case in that there was an order of injunction which could be executed to enforce the right. Such a declaratory relief coupled with an injunction can always be executed or enforced by appropriate proceedings. In any case, a government or government agency against which a declaration of right has been made by its own court is expected to respect such a declaration without question, whereas a citizen who disregards such a declaration exposes himself to the danger of contempt of court proceedings. Whether such a proceeding for an injunction or for contempt has any merit is quite a different matter. I have already held that it has not in this case.

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For all I said on the first issue above, this appeal succeeds and is allowed. The order of interlocutory injunction imposed by the Court of Appeal is hereby lifted, and discharged. The order of costs made by that Court is set aside.

I assess costs in favour of defendants numbers 3, 4 and 7 at N1,000.00 in this court and N500.00 in the Court of Appeal.