MILITARY GOVERNOR, LAGOS STATE & Others v CHIEF EMEKA ODUMEGWU OJUKWU (SC. 241/850) [1986] NGSC 13 (14 February 1986)

MILITARY GOVERNOR, LAGOS STATE & ORS (APPELLANT)

v.

CHIEF EMEKA ODUMEGWU OJUKWU (RESPONDENT)

(1986) All N.L.R. 233

Division: Supreme Court of Nigeria

Date of Judgment: 14th February, 1986

Case Number: (SC. 241/850)

Before: Obaseki, Eso, Uwais, Kawu, Oputa, JJ.S.C.

On October 10, 1985 an exparte application was brought before the High Court by the respondent seeking interim injunction restraining the Military Governor of Lagos State, the Commissioner of Police, Lagos State and the Attorney-General, Lagos State from ejecting him and members of his family from No. 29 Queens Drive, Ikoyi. The trial Judge granted the interim order for injunction on the grounds of the respondent's ownership of the house and impending threat to evict him. The matter then moved to one of notice to the applicants at this stage the respondent now contended that the property at 22 Queen's Drive belonged to Ojukwu transport company owned by his late father. The learned trial Judge refused to grant equitable relief of junction against the Lagos State Government on the ground that the property is an abandoned property and that the respondent had failed to show that he had a legal right to or interest in the property.

On an appeal to the Court of Appeal against this decision Ojukwu Transport Limited applied to be joined as a party interested in the matter. Pending this appeal the Lagos State Government resorted to self help and evicted the respondent notwithstanding the fact that his application was pending before the Court of Appeal. The Court of Appeal therefore held that the right of self-help ended when issues were turned over to the Court and therefore ordered the reinstatement of the respondent into the company.

The Lagos State Government refused to comply with this order and instead appealed to the Supreme Court on the ground that the remedy of interlocutory injunction is not available for an act which has been carried out and concluded.

HELD:

1.      Kayode Eso, J.S.C.-"I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive under the Constitution of the Federal Republic of Nigeria 1979, the Executive, the Legislature (while it lasts) and Judiciary are equal partners in the running of a successful government... The organs wield powers and one must never exist in sabotage of the other or else there is chaos."

2.      While the contempt of the Court of Appeal by the applicants is still subsisting, it would be inequitable to give consideration to the application of the applicants.

3.      It is trite law that a party has no right to take matters into his own hands once the court is seized of it.

Application dismissed.

A. Adetosoyo Esq, Solicitor-General, Lagos State for Applicant.

Chief F. R. A. Williams, S.A.N. (with Ladi Williams and F. R. A. William Jnr.) for Respondent.

Kayode Esq, J.S.C.-On 11th December, 1985, the following application, dated 9th November 1985, was filed before this Court-

"TAKE NOTICE that this Honourable Court will be moved on ........... day of ............... 1985 at the hour of 9 o'clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the applicants for:

(1)     An Order staying the execution of the ruling delivered by the Court of Appeal, Lagos, in this suit and dated Wednesday 13th of November, 1985, pending the final determination of the appeal lodged herein to the Supreme Court;

(2)     Such further Order or Orders as this Honourable Court may deem fit to make."

It was supported by an affidavit containing 18 paragraphs, some of which I would refer to later in these Reasons.

Also, on 11th December, 1985, the respondent through his learned Counsel Chief F. R. A. Williams, S.A.N., filed a notice of preliminary objection as follows

"NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that at the hearing of the defendants application dated the 9th of December 1985, the plaintiff will object that the said application is frivolous, vexatious and an abuse of the process of the court because-

(1)     The said application has been filed in order purely to delay the execution of the order of the Court of Appeal reinstating the plaintiff to possession of his residential house at No. 29 Queen's Drive, Ikoyi.

(2)     There was no genuine intention to prosecute the appeal initiated by the Notice of Appeal dated the 22nd day of November 1985.

The grounds of appeal contained in the said Notice of Appeal are frivolous and manifestly arguable."

The application was heard by this Court on 16th December, 1985, that is, precisely five days after it had been filed: We determined the application that day and dismissed it, after reserving our reasons for dismissing the application.

It would be useful to state a few facts as disclosed on the facts placed before us preceding the present application for a good understanding of this matter.

On 10th October 1985 an ex-parte application made by Emeka Ojukwu respondent in this Court came before the High Court of Lagos State (Omotosho, J.) seeking interim injunction restraining the Military Governor of Lagos State, the Commissioner of Police, Lagos State, and the Attorney-General, Lagos State from ejecting the said Emeka Ojukwu, who hereafter will be referred to simply as Ojukwu in these Reasons for Ruling, and members of his family from No. 29 Queen's Drive, Ikoyi, which he referred to in his application as his house. The interim order sought from the High Court was meant to operate only until there was reasonable opportunity to have the matters in issue before the High Court dealt with. Ojukwu swore to an affidavit before the High Court that the house belonged to his father after whose death he, Ojukwu, became the owner of the house.

He went on further and deposed on oath that during the period of the Civil War which lasted from 1967 to 1970, and which he led against Nigeria from an enclave he termed Biafra, the house remained unoccupied. After the Civil War, Ojukwu resided in the Ivory Coast and though that war ended in 1970, Ojukwu came back to Nigeria, only in 1982, after he had been granted a full pardon by the Government of the Federal Republic of Nigeria.

Ojukwu then said he moved to the house having paid the sum of N90,000.00 to the Lagos State Government for "expenses incurred by the said Government in keeping the house." And that all the members of his family had been residing in the house before the present trouble.

The learned Judge granted the interim order for injunction on the grounds of his ownership of the house and impending threat to evict him.

The matter then moved to one of notice to the Lagos State. Ojukwu would appear, at that stage, to have changed front.

He now said the property belonged to Ojukwu Transport Company owned by his late father and that the N90,000.00 which he paid was paid to Agents in charge of the property for the purpose of securing a lease of the property.

The learned trial Judge refused equitable relief of injunction against the Lagos State Government on the ground that the property is an abandoned property and that Ojukwu had failed to show that he had a legal right to or interest in the property. The learned Judge also said that Ojukwu had not come to Equity with clean hands. (Italics mine).

What followed was an application by Ojukwu Transport Limited (thereinafter referred to in this Ruling as Ojukwu Transport) as a Party interested before the Court of Appeal, asking for leave to appeal against the Ruling of the High Court and an application by Ojukwu seeking that he be "reinstated in his residence at No. 29 Queen's Drive, Ikoyi." The Court of Appeal went thoroughly through the both prayers. One serious point brought before the Court of Appeal was that since the notice of leave to appeal was filed and served on the Lagos State Government, the Government resorted into what they termed self help and evicted Ojukwu notwithstanding the fact that his application was pending before the Court of Appeal. The Lagos State Government used "some one hundred and fifty armed men" to evict Ojukwu, even when his suit was pending in the High Court and his application was before the Court of Appeal. Nnaemeka Agu, J.C.A., delivering the Ruling of the Court of Appeal traced the history of such forcible eviction from the time of Richard II in England and dealt with the position of the law in this country. And after a thorough investigation of the law, in regard to which I would respectively commend the learned Justice for his industry, he came to the conclusion that the right of self-help ended when the issues were turned over to the Court. The Court then ordered that Ojukwu be reinstated into the property, following the forcible ejection which the Lagos State Government termed self-help.

Now, and this is important. The Lagos State Government refused to comply with this order of the Court of Appeal. Or to put it mildly, did not comply with the order. The order was held on 13th November 1985 and was in the following terms-

(ii) Pending the determination of the appeal of the applicant against the said decision, against the respondents and in favour of the applicant an order of mandatory injunction restoring the applicant to his residence at No. 29 Queen's Drive, Ikoyi, Lagos, and restraining the respondents and all their officers, servants, agents and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen's Drive, Ikoyi, Lagos."

Rather than comply with this simple but positive order, the Lagos State Government appealed on 22nd November to this Court on the ground inter alia that:

"the remedy of interlocutory injunction is not available for an act which has been carried out and concluded"

In this case, what the notice of appeal was in effect, saying was that that has been carried out forcibly with over one hundred and fifty men in arms, even when the matter to be determined was before the Court of Appeal. Or to put it in more legal form, carried out as a way to forestall the decision of the Court of Appeal against which an appeal is now being lodged to this Court.

Indeed, following the notice of appeal to this Court, the Lagos State Government applied to the Court of Appeal, the Court whose order has been forestalled! Seeking an order pursuant to section 18 of the Court of Appeal Act for a stay of execution of the mandatory injunction granted to Ojukwu. On 3rd December, 1985 Kolawole, J.C.A. delivering the ruling of the Court of Appeal said inter alia-

"If the appeal of the State Government is successful the respondent can be ejected by due process of law. In this regard Chief Williams has shown magnamity by offering an undertaking in damages by way of rental income if the State Government is successful in its appeal. In that regard no stay would be granted. Learned Attorney-General contended before us that as Chief Ojukwu is a trespasser at 29 Queen's Drive, Ikoyi, the State Government is not prepared to accept any undertakings in damages in the form of rental income from him.

Having regard to the status of irremovability acquired by Ojukwu after the judgment of this Court, it follows that the Lagos State Government is not entitled to a stay of execution because it never made out any special circumstances upon which to grant the stay. (See Keaves v. Dean (1924) 1 K.B. 685 at 686). The prayer for stay of execution is therefore refused and the application is dismissed."

In the same Court, Ademola, J.C.A. in a concurring ruling, said-

"This Court in an earlier ruling had taken the view that it was wrong to eject the respondent by force under the doctrine of self-help. It therefore seems to me that to accede to the contention of the learned Attorney-General that the status quo should be maintained is to condone what we have condemned by the judgment of this Court earlier on. The Court cannot blow hot and cold. To be consistent with our earlier ruling, this application is refused and it is hereby refused with cost."(Italics mine)

The Lagos State Government still failed to comply with the order of the Court of Appeal! And I think it is this dreadful situation that prompted Chief F.R.A. Williams, S.A.N. learned Counsel for Ojukwu to file his notice of preliminary objection dated 11th December. I have already set out this notice earlier in this Ruling.

We heard the two applications together.

Mr Adetosoye the learned Solicitor General for the Lagos State pleaded for the restoration of the status quo ante the judgment of the High Court. He said Ojukwu had been in occupation for 10 months before the Lagos State Government got to know of his occupation.

Chief Williams for his part emphasised the deliberate disobedience of the order of the Court of Appeal by the Lagos State Government and that the Government was in contempt of the Court of Appeal.

I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive under the Constitution of the Federal Republic of Nigeria 1979, the Executive, the Legislature (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the Constitution to these organs by s.4 (legislative powers), s.5 (executive powers) and s.6 (judicial powers) are classified under an omnibus umbrella known under Part II to the Constitution as, "Powers of the Federal Republic of Nigeria." The organs wiled those powers and one must never exist in sabotage of the other or else there is chaos. Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness is tantamount to a deliberate violation of the Constitution. When the Executive and the Legislature together and which permits the judiciary to co-exist with it in the administration of the country, then it is more serious than imagined.

By virtue of the Constitution (Suspension and Modification) Decree 1984, No. 1 a good number of the provisions of the Constitution were suspended. Indeed, what was left was what had been permitted by the Federal Military Government to exist. All the provisions relating to the Judiciary were saved. Section 6 of the Constitution, the most important provision, in so far as the institution known as the Judiciary is concerned, which vests in courts the judicial powers of the Federation was left extant. The Military Government had the power and still has to put an end to the existence of that provision. It has not done so, and that must have been advisedly for it does intend that the rule of law should pervade. It is the clearest indication against rule by tyranny, by sheer force of arms against a presumption subjecting the nation to the rule of might as against rule of right.

That being the case, it behoves every organ of the Military Government to make it clear at all times, albeit as the presumption is always that of rule by might of the military, to assume a perennial onus of demonstrating a rebuttal of this onus.

With the contempt of the Court of Appeal by the applicants still subsisting, it would be inequitable for this Court to give a consideration to the application of the applicants. Let the Lagos State Government purge itself of this serious contempt, of this apparent violation of the Constitution even as amended by Decree No. 1 of 1984 before coming to seek the favour of the Court.

Another very important matter emanates from the act of the applicants. They have no right to take the matter into their own hands once the court was seised of it. The essence of rule of law is that it should never operate under the rule of force or fear. To use force, seek the court's equity, is an attempt to infuse timidity into court and operate a sabotage of cherished rule of law. It must never be!

It is for these reasons that I dismissed the application of the applicants-The Military Government of Lagos State, the Commissioner of Police, Lagos State and the Attorney-General, Lagos State on 11th December 1985 and so be it.

Obaseki, J.S.C.-On the 16th day of December, 1985, the application of the applicant praying this Court of

"(1)    An order staying the execution of the ruling delivered by the Court of Appeal, Lagos, in this suit and dated Wednesday 13th day of November, 1985 pending the final determination of the appeal lodged herein to the Supreme Court;

(2)     such further order or orders as this Honourable Court may deem fit to make"

came before this Court for hearing. After hearing the submissions of counsel on both sides on the application, I found no merit in the application. I accordingly dismissed it and reserved my reasons for the ruling till today. I have since then seen the draft of the Reasons for Ruling just delivered by my learned brother, Eso, J.S.C. in the application and I agree with it and adopt the reasons as my own.

The said Ruling complained of as appears in the Ruling delivered by Nnaemeka-Agu, J.C.A. (with which Mohammed and Kutigi, JJ.C.A. concurred) reads:

"In the result, I hereby grant:

(i) To Ojukwu Transport Limited, the Party Interested leave to appeal against the decision of Omotosho, J. given in a Lagos High Court on the 11th October, 1985; and

(ii) Pending the determination of the appeal of the applicant against the said decision against the respondent in favour of the applicant an order of mandatory injunction restoring the applicant to his residence at No. 29 Queen's Drive, Ikoyi, Lagos and restraining the respondents and all their officers, servants, agents and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen's Drive, Ikoyi, Lagos."

It is even an interim injunction and will terminate on the determination of the appeal lodged against the refusal of an interlocutory injunction. The points highlighted during the hearing were that:

(1)     there is a subsisting and substantive claim by Chief Emeka Odumegwu Ojukwu against the Military Governor of Lagos State and two others in the High court of Lagos State before Omotosho, J. in which Chief Emeka Odumegwu Ojukwu is challenging the constitutionality of the decision by the appellants/applicants to eject him from the premises at 29 Queen's Drive, Ikoyi, Lagos.

(2)     the premises had been let out by the appellants to G. Cappa;

(3)     apprehensive that the appellants would use force to eject him without resort to court processes, Chief Emeka Odumegwu Ojukwu made an interlocutory application for an interim injunction pending the determination of the case. An interim ex parte order was first made by learned judge pending the service of notice of motion and hearing of the notice of motion. This order was subsequently discharged when after the hearing, the application was refused;

(4)     the appellants subsequently moved into the premises with over 150 armed policemen, forcibly ejected the respondent and threw him out into the streets;

(5)     the appellants did not secure any court order to back up their action;

(6)     Chief Emeka Odumegwu Ojukwu subsequently filed his notice of appeal against the refusal of the order of interim injunction and applied to the Court of Appeal to order his re-instatement into possession. Ojukwu Transport Limited the acknowledged owner of the premises then applied for leave of appeal against the said order of refusal of interim injunction pending the determination of the suit;

(7)     The Court of Appeal granted both orders and hence this application. The principal question was whether there was legal and constitutional basis or authority for the action taken by the appellants to eject Chief Emeka Odumegwu Ojukwu from the premises the subject matter of a pending matter between the parties before the High Court.

I can find no constitutional or legal authority to support the action of the appellants. Indeed all the authorities are the other way.

In the area where rule of law operates, the rule of self help by force is abandoned. Nigeria, being one of the countries in the world, even in the third world which profess loudly to follow the rule of law, gives no room for the rule of self help by force to operate. Once a dispute has arisen between a person and the government or authority "and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of intention to pre-empt the decision of the court. The courts expect the utmost respect of the law from the government itself which rules by the law.

The cases of Daniel v. Ferguson (1891) 2 Ch. 27 (per Kay, L.J. at 30), Von Joel v. Hornsey (1895) 2 Ch. 774; Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703 vividly illustrate the attitude of the courts in England. They show that the courts will order a status quo ante. In the United States of America, the courts are guided by the same principles and their attitude is well illustrated by J. Edwards Jones v. Securities Exchange Commissioner 80 L. Ed 298, U.S. 1-33, 1015-1235.

If the Government of Lagos State wants possession from Chief Emeka Odumegwu Ojukwu, it should apply for an order of possession from the competent court of law.

This application was for a stay of execution. The appellants/applicants have failed to show that a refusal may render any judgment they may get in their favour nugatory; Vaswani Trading Co. v. Savalak & Co. (1972) 1 All N.L.R. (Part 1) 483 at 487. learned Counsel for the appellants admitted that Chief Emeka Odumegwu Ojukwu had been on the premises before the applicants threatened to eject him by force. He also admitted that Chief Emeka Odumegwu was still in occupation of the premises when he took out proceedings to restrain the appellants from ejecting him. He also admitted that the substantive action for injunction still has to be heard and determined. It would appear that the applicants want the court to put a premium on unlawful means of obtaining possession. This, this Court will certainly not do in view of its solid stand in favour of the rule of law.

The salient facts of this case appear to be on all fours with the facts in J. Edwards Jones v. Securities and Exchange Commission 80 L Ed. 1015 298 U.S. 1-33. There the second head note reads.

"After a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided."

Mr Justice Sutherland delivering the judgment of the Supreme Court of the United States of America, said at p. 102:

"such a proceeding is analogous to a suit in equity to obtain an injunction and should be governed by like consideration... The rule is well settled both by the courts of England and of this country, that where a suit is brought to enjoin certain activities for example, the erection of a building or other structure, of which suit the defendant has notice the hands of the defendant are effectually tied pending a hearing and determination even though no restraining order or preliminary injunction be issued. We briefly revised the decisions:

'In Daniel v. Ferguson (1891) 2 Ch. 27-CA; suit had been brought to restrain the defendant from building so as to darken plaintiffs' lights. Notice of motion for a temporary injunction to be made upon a designated date was served on the defendant. After receiving notice, the defendant put on a large number of men and proceeded with his building running a well up to a height of about 39 feet from the ground before the injunction was granted. The court without regard to the ultimate rights of the parties held that the wall thus run up by the defendant should be torn down at once, as an attempt to anticipate order of the court. A like situation was presented in Von Joel v. Hornsey (1895) 2 Ch. 774-CA. In that case, the evidence showed that the defendant had repeatedly evaded attempts to serve him with process, and in the meantime had gone on with the building. Again without regard to the ultimate rights of the parties, the court directed the defendant to pull down that part of the building thus erected. The Supreme Court of Pennsylvania in several cases had followed the same rule, Clark v. Marin 49 PA 289, 298, 299; Easton, S.E. & W.E. Pass R. Co. v. Easton 133 PA 505, 519, 19 A 486; Cooke v. Boynton 135 PA 102, 19A, 944; Meigs v. Millgan 177 PA

' 66, 72, 76, 35A, 600; Fredericks v. Huber 180 PA 572, 575, 37A, 90

The conclusion to be drawn from all the case is that after a defendant has been notified of the pendency of suit seeking an injunction against him even though a temporary injunction be not granted he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as they may be ultimately decided 1 High, Inj. 4th ed 5(a). We hold the principle of this rule to be applicable to the present case. When the proceedings were instituted by the Commission and the registrar was called upon to show cause by a stop order should not be issued, the practical effect was to suspend, pending the enquiry all action of the registrar under the statement."

I will not like to leave this ruling without