In The Supreme Court of Nigeria
On Friday, the 8th day of June 1990
SC 174/1989
Between
Dr. Sola Saraki ...... Appellant
And
N.A.B. Kotoye ....... Respondent
Judgement of the Court
Delivered by
Andrews Otutu Obaseki. J.S.C.
This appeal is against the decision of the Court of Appeal, Lagos Division, delivered on the l7th, day of April, 1989 which partially reversed the decision of the Federal High Court, Lagos granting an order of interlocutory injunction against the respondent to restrain him from exercising any right in respect of some shares in dispute held in the Bank (Societe Generale Bank (Nigeria) Ltd). After the appeal was entered in the Supreme Court, the appellant filed a motion for "an interim injunction to restrain the defendant/respondent from exercising any of the rights attaching to the 2,333,000 N1 shares in the Societe Generale Bank (Nigeria) Limited pending the appeal filed by the plaintiff herein to the Supreme Court."
After hearing argument of counsel, the Court decided to hear arguments in the appeal and decide the issue raised which was similar in nature to the issue raised in the motion. Parties and their counsel were duly invited and notified in open court and the date fixed for hearing of the appeal was brought forward from September 1990 to 3rd February, 1990. The periods for filing briefs were abridged with the concurrence of counsel by the court and the stage was set for the hearing of the appeal.
Before the hearing date, the 1st day of March, 1990 to be definite, learned counsel filed a notice of motion praying for enlargement of time to file the respondent's brief. Also filed at the same time was a notice of intention to rely upon preliminary objection to grounds 1(b) and ground 3 and the arguments in the appellant's brief under paragraphs 3.4, 4.5 and 6. Almost simultaneously with the filing, the plaintiff / appellant filed notice of motion for amendment of ground (111) by substituting identical grounds differently worded. The plaintiff/appellant had earlier also filed a notice of motion to amend the notice of appeal by deleting the phrase:
On the ground that injunction granted reversed the status quo and did not maintain it.
from ground 1 of the grounds of appeal. The defendant's/respondent's motion for enlargement of time to file respondent's brief being unopposed and of substantial merit was granted as prayed.
The motion for amendment to ground (iii) was not argued and accordingly, I hereby strike it out.
The application for enlargement of time to file respondent's brief having been granted as prayed, the stage was set for the respondent to argue his notice of preliminary objection which was set out in Part 1 of the brief. It reads:
The defendant/respondent has already given notice that he will at the hearing raise preliminary objections to:
(i) Ground 1(b) which contends that the Court of Appeal ought not to have reversed the decision of the Lagos High Court is vague and has not specified the particulars upon which the appellant relies or the nature of any error which may have been made by the Court of Appeal;
(ii) Ground 3 of the grounds of appeal upon the ground that the particulars of the facts and circumstances referred to therein as grounds upon which the decision of the Court of Appeal cannot be supported are not specified therein;
(iii) The arguments in the appellant's brief under paragraphs 3.4, 4.5 and 6 are not supported by the ground of appeal filed and should be struck out and the appeal dismissed.
It is necessary at this juncture to set out the three grounds of appeal filed by the plaintiff/appellant against the decision of the Court of Appeal and these grounds are as follows:
(i) The court below erred in law in reversing the decision of the High Court.
Particulars of Error
(a) The jurisdiction of the High Court to grant interlocutory injunction derives from the powers of the court to administer the doctrines of equity and in particular from the provisions of section 18(1) of the High Court Law of Lagos State. Accordingly, though the preservation of the status quo may be the most usual basis in cases where the court finds it 'just and convenient' to award the remedy of injunction, it is by no means the only basis for doing so.
(b) In the particular circumstances of this case as disclosed on the pleadings and affidavit evidence, the order made by the High Court on the application for interlocutory injunction pending trial was sound and ought not to have been reversed by the Court of Appeal.
(ii) The court below exercised its discretion wrongly and/or failed to exercise the same judicially in deciding to curtail the scope of the order of injunction pending trial granted by the High Court having regard to their decision on the application of the defendant to stay the order for injunction pending the determination of his appeal. In particular, the court below failed to observe that it was not at liberty to make a fundamental departure from the decisions given in its ruling on the defendant's application for stay of the order of the High Court pending appeal.
(iii) The decision of the court below cannot be supported having regard to the facts and circumstances before it."
Grounds 1(b) and 3 are the subject of this preliminary objection.
Learned counsel for the defendant/respondent alleged that the ground 1(b) is vague and has not specified the particulars upon which the appellant relies or the nature of any error which may have been made by the Court of Appeal. He further contended that paragraph 1(b) of the particulars merely contends that in the particular circumstances of this case as disclosed on the pleadings and the affidavit evidence, the order made by the High Court was A sound and ought not to have been reversed by the Court of Appeal.
He further contended this item is itself a ground of law complaining that the Court of Appeal was in error but it does not set out the particulars and nature of the error as required by Order 8 Rule 2(2) of the Rules of the Supreme Court, 1985. This, according to learned counsel, is so; notwithstanding that paragraph 1(b) is listed as one of "particulars of errors" under the main ground. He cited Order 8 Rule 2(2) Supreme Court Rules, 1985 as authority.
In reply, learned counsel for the respondent objected that the objection was raised rather later in the day and as such, it should not be entertained by the court particularly as the defendant/respondent had taken a fresh step to wit taking a date for the hearing of the appeal and applying for enlargement ~ of time to file respondent's brief and filing respondent's brief. He relied on Order 2 Rule 29(1) Supreme Court Rules, 1985 as authority. Learned counsel further contended that the ground 1(b) satisfies the Rules of Court Order 8 Rule 2(2).
The objection of appellant's counsel, Chief F.R.A. Williams, S.A.N., based on Order 2 Rule 29(1) Supreme Court Rules, 1985 is well founded. The Rule Order 2 Rule 29(1) reads:
An application to strike out or set aside for non- compliance with these Rules or for any other irregularity arising from the rules of practice and procedure in this Court any proceedings or any step taken in these proceedings or any document, judgment or order therein shall only be entertained by the court if it is made within a reasonable time before the party applying has taken any fresh step after becoming aware of the irregularity.
I observe that the notice and grounds of appeal were filed on 24th April, 1989.1 also observe that respondent filed his brief containing the objection on 1st March, 1990. Although the notice of intention to rely on the preliminary objection has not, in my view, been made within reasonable time. It is F also devoid of merit.
I am unable to accept the contention of learned counsel for the respondent that ground 1(b) is vague and that particular (b) of ground 1 does not satisfy the Rules - Order 8 Rule 2(2).
With regard to ground 3, learned counsel for the respondent contended that the ground is vague and that the particulars of the facts and circumstances referred to therein as grounds upon which the decision of the Court of Appeal cannot be supported are not specified therein. In reply, learned counsel for the appellant submitted that the ground has been stated as concisely as the Rules required and particulars of facts and circumstances are not required by the Rules the ground being in the nature of an omnibus ground. I cannot see any merit in the objection to ground 3.
The ground, which complains that the decision cannot be supported having regard to the facts and circumstances of the case before the court, is complete in itself. It is not vague and does not require particulars. It does not require particulars because the particulars of errors are implicit in the allegation of disregard to the facts and circumstances of the case before the court.
The 3rd ground of objection cannot be classified strictly as a complaint against the grounds of appeal. The complaint is that the arguments in paragraphs 3.4, 4.5 and 6 are not in support of or are not founded on any of the grounds of appeal. According to learned counsel for the respondent, the arguments have no basis as they have no origin in the grounds filed but appear to be on the grounds not filed in the appeal before the court.
Commenting specifically on paragraph 3.4 of the appellant's brief, learned counsel for the respondent observed that there was no ground of appeal that the Court of Appeal was wrong in deciding that the court below must confine itself to the evidence before it before making the order.
On paragraph 4 of the appellant's brief, learned counsel observed that there was no ground of appeal in support of the argument that the Court of Appeal should not have curtailed the injunction because the plaintiff in the court below had been contending that the defendant held the shares as a trustee. He however conceded that ground 2 complained of the curtailment of the scope of the order of injunction but argued that the complaint was for the court's failure to have regard to its previous ruling refusing the application for stay of the interlocutory injunction.
Dealing with paragraph 6 of the brief, learned counsel commented that the only ground of appeal relating to reversal of the status quo is amended ground 1(b). He observed that the ground has not contended that there are other basis and has not set out these other basis for preserving the status quo. There is no ground putting forward the contention that the defendant is holding as a trustee as has been done in the brief.
Dealing with paragraph 5 of the brief learned counsel for the respondent observed that the paragraph dealt with the principles of law which should guide the court or which the court should follow in setting aside the decision of the court below. It was not, learned counsel contended, in support of any ground.
In reply, learned counsel for the appellant attacked the objections on two grounds
(1) that the application to strike out the appeal on the grounds that the grounds of appeal are vague and did not contain particulars of and nature of errors of law or misdirection as required by Order 8 Rule 2(2) Supreme Court Rules, 1985 is too late in the day since the respondent has taken fresh step after becoming aware of the irregularity contrary to Order 2 Rule 29(1) Supreme Court Rules, 1985.
He then relied on a decision of this court in the case of Nigerian Produce Company v. Noga S.A. (1971) 2 Nigerian Commercial Law Report 211. Learned counsel referred to the appearance of the respondent in this appeal on 15th January, 1990. He did not raise his objection then, learned counsel for the appellant reminded the court and referred to the power of court to do justice under Order 10, Supreme Court Rules, 1985.
Learned counsel also submitted that it was too late to strike out the brief as the application was not made within a reasonable time. He contended that the application should not be delayed to the date fixed for hearing of the appeal. Learned counsel then dealt with the merit of the objection. He observed that the matter before the court concerned the exercise of the court's discretion and submitted that in that type of case the appellant is permitted to say that on the facts and circumstances of the case, the discretion was not exercised judiciously. He then referred to the case of Odusote v. Odusote (1971) Vol.7 N.S.C.C. 228; (1971)1 All N.L.R. 219. He contended that when dealing with questions of law alone, the circumstances bad to be worked out. See Nafiu Rabiu v. The State (1981) Vol.2 N.S.C.C. (1981) 2 N.C.L.R. at 293. Learned counsel for the respondent conceded that his application has not complied with the requirement of Order 2 Rule 9(1) SCR. 1985. He also agreed that he agreed to the abridgment of the time prescribed by the Rules for the filing of briefs to 7 days from the date of service of appellant's brief. He contended that Order 2 Rule 29(1) Supreme Court Rules, 1985 is inapplicable.
With regard to the complaint against ground 1(b) and ground 3,1 can find nothing vague in the two grounds. When is a ground vague? It is vague when it is not clearly, precisely or definitely expressed or stated. Can one say that the complaint or issue raised in ground 1(b) is vague? Can one also say that the complaint or issue raised in ground 3 (of the grounds of appeal) is vague? I would answer the questions in the negative. [If the grounds had been vague, I would have had no hesitation in upholding the preliminary objection and striking them out. The Rules of Court, Supreme Court Rules, 1985 does not give any accommodation to grounds that are vague or grounds that fail to give the nature and particulars of errors and misdirection. See
Okeke Amadi v. Okeke Okoli (1977) 7 S.C. 57 at 63
Mba Nta v. Anigbo (1972) 5 S.C. 156, 164
Osawaru v. Ezeiruka (1978) 6-7 S.C. 135
Atuyeye v. Ashamu (1987)1 N.W.L.R. (Pt.49) 267 at 282
Particulars (b) of ground 1 is not a ground by itself but the particulars and nature of errors complained of although learned counsel for the respondent contended that it could concurrently by itself be a ground of appeal. The pleadings and affidavit having been mentioned therein, the need to set them out in the particulars of errors does not arise. Similarly, ground 3 having complained of the decision being unsupportable having regard to the facts and circumstances before the court, it is not in the contemplation of the Rules that all the facts and circumstances be set out in the particulars.
Turning to the complaint above, paragraph 3.4, sections 4, 5 and 6 of the appellant's brief of argument being arguments in support of a ground not before the court, an examination of ground III (three) discloses that the arguments in paragraphs 3.4 and section 4 are based on it. Similarly, an examination of ground 1(b) discloses that the arguments in paragraphs 3.4 and section 4, 5 and 6 are based on it. Paragraph 3.4 dealt with the question whether the facts and circumstances include the pleadings. Paragraphs 4 and 11 of the counter-affidavit does import the facts in the pleadings filed or settled and ready for filing into these proceedings for consideration. More expressly, paragraph 13 of the counter-affidavit reads -
"The statement of defence and counter-claim proposed to be filed herein has been settled and is now ready for filing and the averments of fact therein represent the true state of facts of the matters in issue herein and I rely upon the averments of fact contained therein in opposition to this application."
statement of defence and counterclaim being a reply to statement of claim cannot be considered in total isolation from and disregard of the statement of claim.
Section 4 deals with the scope of the injunction and the arguments under the section are in support of grounds 1, 2 and 3 of the grounds of appeal.
Section 5, headed 'reversing' the 'status quo' in my opinion is the heart of the question to be determined. Is reversing the status quo or maintenance of the status quo, i.e., depriving the respondent of the rights to exercise the right of ownership of the shares in dispute which rights he has exercised for ten years before the action was filed not the predominant consideration in this matter? In my opinion, it is the main consideration. The interlocutory inj unction prayed for is in the eyes of the appellant, to maintain the status quo, but in the eyes of the respondent to reverse the status quo. Ground 1 raises the issue loudly, grounds 2 and 3 raise the same issue silently.
Ground 6 is headed 'setting aside the discretion exercised by Thomas, J.' There is no doubt that the Court of Appeal interfered with the manner Thomas, J., exercised his discretion and that is the complaint in grounds, 1, 2 and 3 of the grounds of appeal.
The objection to the paragraph 3.4 and sections 4, 5 and 6 of the appellant's brief is misconceived and I hereby overrule it. The preliminary objections fail and I hereby dismiss it.
I now proceed to consider the arguments in the appeal.
The appellant herein is the plaintiff and the respondent, the defendant in suit No.LD/938/87 before the High Court of Lagos State in the Lagos Judicial Division. In the said Suit, the plaintiff claimed:
1. A declaration that the 4,579,460 shares standing in the name of the defendant in the Register of Shareholders of Societe Generale Bank (Nigeria) Limited is held by him in trust for the plaintiff.
2. An order directing an inquiry into the amount of any dividends which may have been received by the defendant as holder of the aforementioned shares up to the date of judgment herein.
3. An order of injunction restraining the defendant from holding or dealing with the aforesaid shares otherwise than as trustee for the plaintiff in accordance with the lawful direction of the plaintiff or the appropriate authorities.
4. An order for rectification of the Register of Shares to give effect to any judgment delivered herein.
The writ of summons was dated 3rd of June, 1987 and filed on that date. A statement of claim bearing 2nd June, 1987, containing 17 paragraphs was filed and served. A statement of defence and counter-claim of 57 paragraphs dated 29th June, 1987 was filed and served. Before the filing of the statement of defence and counterclaim, the plaintiff filed a motion on notice for an order of interlocutory injunction dated 24th day of June, 1987.11 was filed on the same date against the defendant. The motion reads:
"Motion on Notice
S. 18 High Court Law
TAKE NOTICE that this Honourable Court shall be moved on Monday the 6thday of July, 1987 at the hour of 9 o'clock in the forenoon, or so soon thereafter as counsel may be heard on behalf of the plaintiff' for an order of injunction restraining the defendant whether by himself, his servants or agents or howsoever otherwise from exercising any of the rights attaching to the 2,233,000 N1.00 shares in the said Societe Generale Bank (Nigeria) Limited covered by Share Certificates 000003,000006, 000011, 000018, 000022, 000024, 000026 and the 3,453,100 N1 shares in the said company covered by share certificates 000053, 000054, 000055 and 000056 pending the final determination of this action and for such further or other orders as the court may consider appropriate in all the circumstances."
This motion was supported by affidavit evidence of 9 paragraphs sworn by Dr. Sola Saraki, the plaintiff. The defendant filed a counter-affidavit evidence of 13 paragraphs sworn by Nathaniel Adedamola Babalola Kotoye, the defendant. Paragraphs 2, 3, 4 and 5 of the affidavit are of special significance and relevance. They read:
2. The defendant and myself are registered as holders of various numbers of shares in Societe Generale Bank (Nigeria) Limited.
3. The sums of money paid on behalf of the defendant for his acquisition of shares in the said company were provided by me and the said shares were held by the defendant in the full knowledge that I was the beneficial owner of the shares and that he was obliged to deal with the shares for my benefit and in accordance with my directions.
4. The defendant has after receiving financial and other material support from me over a period of some twenty years, now denied that he is my trustee for the said shares and claims to be the beneficial owner of the said shares.
5. I am fully aware from my intimate knowledge of the defendant that, in the event my claims against him succeeds, if he is permitted to part with possession of shares, he will not be in a position to make monetary compensation to me for the value of the said shares.
There is therefore affidavit evidence that the defendant was dealing with the shares for the benefit of the plaintiff and in accordance with plaintiff's direction. There is also affidavit evidence that the defendant now disputes plaintiffs beneficial ownership of the shares and also claims himself to be the beneficial owner of the shares.
The counter-affidavit deposed to by the defendant bears this dispute out. I will therefore refer to paragraphs 2, 3, 4, 5, 6, 9, 10 and 13. They read as follows:
2. That paragraphs 3 and 4 of the affidavit in support are untrue.
3. That the shares which I purchased initially in Societe Generale Bank (Nigeria) Limited were paid for from credit facilities granted to the plaintiff and I jointly by the United Bank for Africa and paid from a joint account opened by its thereat.
4. That as is shown in paragraph 7(2) of the statement of claim, I provided four of my properties as security for the loan thus granted by the U.B.A. and say that those houses were mine and were purchased from my own resources and loans granted to me by Bankers.
5. That before the U.B.A. agreed to grant us the loan of N750,000.00 with which to purchase the said shares, they required that the plaintiff and I provide the initial sum of N150,000.00
6. That it was I who found the N150,000.00 by borrowing the same and paid the same into the joint account before the U.B.A. released the fund needed for the share purchase to us. The said sum of N150,000.00 has been subsequently repaid to the lender from the joint account aforesaid.
9. That I am owner in my own right of all the shares standing in my name in the Register of Societe Generale Bank (Nigeria) Limited (hereinafter referred to as "the Bank") just in the same way as the plaintiff is the beneficial owner of the shares purchased with the loan granted through the U.B.A. joint account (with the exception of part of those shares held by the plaintiff in trust for some Nigerians to be determined by the plaintiff and the defendant).
10. That I have since 1977, when the first shares were allotted to me exercised the full rights of ownership in respect of all the shares, which have come to be registered in my name.
13. That the statement of defence and counter-claim proposed to be filed herein has been settled and is now ready for filing and the averments of facts therein represent the true state of the facts of the matters in issue herein, and I rely upon the averments of fact contained therein in opposition to this application.
Paragraph 7(2) of the statement of claim to which the defendant referred in paragraph 4 of his counter-affidavit reads:
The United Bank for Africa Ltd. granted overdraft facilities to the plaintiff and the defendant on the security of (i) plaintiff's properties at 3/5 Ondo Street, West; 45 Marine Road, Apapa, 6 Amosu Street, Surulere and 13 Oguntokun Street, Surulere and (ii) defendant's properties at plot 28, BlockT, G.R.A., Ikeja, 18 Jalupon Close, Surulere and 13 Olufemi Street, Surulere and house and land at Ibara, Abeokuta. The properties used by defendant as security were purchased by him with substantial cash donations from plaintiff.
The application came up for hearing before Olusola Thomas, J. After hearing arguments and submissions of counsel to the parties, he delivered a considered Ruling wherein he granted the application in the following A terms:
Apart from the temporary restraint on defendant's right to deal with the shares until the dispute is finally determined and which he will resume if he succeeds his inconvenience is less in comparison with the irreparable loss to the plaintiff if he succeeds at trial I accordingly order that the defendant, whether by himself, his servants or agents or howsoever otherwise be restrained from exercising any of the rights attaching to the 2,233,000 N1.00 shares in Societe Generale Bank (Nigeria) Limited covered by share certificate 000003, 000006, 000011, 000018, 000022, 000024, 000026 and the 3,453,100 N1.00 shares in the said company covered by share certificates 000053, 000054, 000055 and 000056 pending the final determination of this action. I hereby impose an undertaking on the plaintiff to pay damages to the defendant if at the trial it was found by the court that the order hereby made ought not to have been made.
Earlier on in his Ruling, the learned trial Judge observed and commented as follows:-
The summary of the plaintiff's pleading forms the genesis of the allegations on which the plaintiff relied and those facts he deposed to in his supporting affidavit. I have already reproduced the plaintiff's affidavit above.
These facts have been contested by the defendant in his counter-affidavit, which incorporated his statement of defence and counter-claim. The defendant gave his own version of the case. This is not the stage where the court should examine and determine the truth or otherwise of certain allegations either in the plaintiff's case or the defendant's case. It is a matter for trial. Obaseki, Justice of the Supreme Court put such a situation as the present in Obeya Memorial Specialist Hospital case in this manner -
When an application for interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action.
It was to mitigate the risk of injustice to the plaintiff during the period the uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction.'
Upon the nature of the case as framed by the plaintiff, I cannot say that his claim is frivolous, indeed, from the contested facts by the defendant, there are serious questions to he tried in this case.
The defendant was dissatisfied and took the matter on appeal to the Court of Appeal on 7 grounds of appeal. While the appeal was being processed for hearing, the defendant unsuccessfully applied to the High Court and the Court of Appeal in succession to have the interlocutory injunction suspended pending the determination of the appeal.
Eventually, the appeal came up for hearing and after hearing oral arguments of counsel and considering the arguments and submissions in the briefs filed, the court, by a majority of 2 to 1 varied the order of injunction by removing voting rights from the operation of the order.
Kalgo, J.C.A., with Awogu, J.C.A., partially allowed the appeal and varied the order of injunction while Akpata, J.C.A., dismissed the appeal. Kalgo, J.C.A., concluding his lead judgment observed and commented as follows:
On the whole, there was no evidence before the trial court in the affidavit in support of the application for interlocutory injunction to justify making an order depriving the appellant the rights to exercise his ownership right on the shares in dispute, which right he has exercised for the past ten years before the action was filed. There was however evidence in the affidavit in support to justify an order of interlocutory injunction restraining the appellant from selling or otherwise alienating the shares in dispute pending the determination of the action. Accordingly, I hold that the order of injunction made by the trial Judge in the instant appeal is too wide and that ground 3, 4 and 7 of the ground of appeal succeed. The appeal therefore succeeds in part and is hereby partly allowed. The order of injunction made by the learned trial Judge is hereby varied and I make instead the following order:
1. The defendant/appellant whether by himself, his servants or agents or whosoever otherwise, be and are hereby restrained from selling, pledging, mortgaging or otherwise alienating the 2,233,000 N1.00 shares in Societe Generale Bank (Nigeria) Limited covered by share certificates 000003, 000006, 000011, 000018, 000022, 000024, 000026 and the 3,453,000 N1.00 shares in the said Bank covered by share certificates 000053, 000054, 000055 and 000056 pending the final determination of the substantive action.
2. The appellant is further restrained from selling, pledging, mortgaging or otherwise alienating any bonus or bonus shares or scrip issues representing any profit accruing on the shares mentioned in paragraph (1), pending the final determination of the substantive action.
The undertaking in damages ordered by the trial Judge shall continue to stand unaltered. The appellant is entitled to costs in this appeal which I assess at N250.00.
The reasoning of the learned Justice of the Court of Appeal leading to the decision was set out in the judgment as follows:
Although the learned trial Judge did not make an express finding on the issue, he must have found the balance of convenience tilted in favour of the plaintiff/respondent when he proceeded to make an order in his favour.
In considering the issue of the balance of convenience, the case of American Cyanamid (supra) referred by Chief G.O.K. Ajayi in his brief and submission in this court, Lord Diplock on page 510 as follows:
the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages m the measure recoverable at common law would be adequate and the defendant would be in a financial positi