The writer would like to start by posing this question: where a defendant has been previously notified of the pendency of a suit or an application seeking an injunction against him, is such a defendant entitled to take any further actions or actions in respect of the subject matter of the suit?
In regular civil proceedings, the mere fact that a party to a proceeding has filed a valid appeal does not, without more, constitute a stay. As it is usually said by the courts, “an appeal per se does not necessarily operate as a stay of execution of a judgment.” See section 17 of the Court of Appeal Act; See also UMONAM NIGERIA LTD. & ANOR. v. SAMUEL GREGORY EFFIONG (2012) LPELR-20036(CA); Ofordeme v. Onyegbuna (2006) 5 NWLR pt 974 pg 549; Cheshe v. Nicon Hotels Ltd. 3 (1998) 12 NWLR pt 576 pg 82; Pavex International Co. Nig Ltd. v. IBWA Ltd. (2000) 4 SC pt 2 190. Accordingly, where a party against whom an executory judgment has been given has filed a valid appeal against the judgment, such a party (appellant) ought also to file (at the lower court) an application for stay of proceeding (where it is an interlocutory appeal) or stay of execution (where it is an executory final judgment) or Injunction Pending Appeal (where final judgment is merely declaratory or the plaintiff’s claim is dismissed or an application for interlocutory injunction is refused). If this is not done, the court below or the parties involved would be at liberty to proceed with the enforcement of the judgment.
However, there is a universal principle of rule of law, which demands that “once a party to a suit has been duly served with an application or a suit seeking to restrain him from doing an act or from taking a particular step, such a party/person would be in contempt of court and in violation of rule of law if he or she goes ahead and takes any further steps in respect of the subject matter of the suit/application” This principle was re-emphasized, and strictly applied and enforced in the famous case of MILITARY GOVERNMENT OF LAGOS STATE V EMEKA ODUMEGWU-OJUKWU (1986) 1 NWLR (Pt.18) 621, (2001); (2001) FWLR (Part 50) 1779 at 1800, paragraphs B — C, where the Supreme Court stated as follows:
“After a defendant has been notified with the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he(the defendant) acts at his own peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided” (see Military Governor of Lagos State vs. Ojukwu (supra) at 1800, Para. B – C). “They have no right to take the matter into their own hands once the court was seised of it.” (Military Governor of Lagos State vs. Ojukwu (supra) at 1798, para. D –E; p. 1796, para.E). See also ELF MARKETING (NIGERIA) LIMITED V J. L. OYENEYIN AND SONS LIMITED [1995] 7 NWLR (pt. 407) 371
This has been, and still is, the trend in the whole of the civilized world. A few examples would suffice. In the United States of America case of PORTER V. LEE, 328 U.S. 246, at page 251, 66 S.Ct. 1096, at page 1099, 90 L.Ed. 1199, the court held that “where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may be mandatory injunction restore the status quo.’ Cf. Jones v. Securities & Exchange Commission, 298 U.S. 1, 17-18, 56 S.Ct. 654, 80 L.Ed. 1015. Also, in TURNEY V. SHRIVER, 269 Ill. 164, 109 N.E. 708, the rule is framed thus: ‘Where a bill for an injunction has been filed, and the court has acquired jurisdiction of both the person and the subject-matter of the suit, and the defendant does any act which the bill seeks to enjoin, such party acts at his peril and subject to the power of the court to compel a restoration of the status quo ante, or to grant such other relief as may be proper under the particular circumstances of the case.’ 269 Ill. at page 172, 109 N.E. at page 711.” See also the more recent case of DARNELL GARCIA V. JOHN C. LAWN C.A.9 (Cal.) 1986
Back here again in Nigeria, in BELLO V A.G., LAGOS STATE (2007) 2 NWLR (Pt.1017) pg.115, while the matter was still pending in court, the appellant did a publication in a newspaper in respect of the subject matter of the suit, the lower court held that the appellant (as applicant/plaintiff in the court below) was in contempt of court. The Court of Appeal in affirming the decision of the lower court, stated thus:
“In Military Government of Lagos State v Ojukwu (1986) 1 NWLR (Pt.18) 621, (2001) FWLR (pt.50) 1779, wherein it was held that:
“After a defendant has been notified of the pendency of a suit seeking 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 merit as may be ultimately decided” …. It is crystal clear from the publication set out above that a suit was pending. It transpired from the publication that an application for interlocutory injunction was equally pending. The publication was made to coincide with the date the application for interlocutory injunction was fixed for hearing, 18th September, 2001. The last paragraph had the effrontery of anticipating the relief sought in the motion on notice. In other words, learned counsel for appellant arrogated or ascribed to himself the power to grant the interlocutory injunction, This respectfully does not only constitute interference with the judicial proceedings, in suit ID/564M/2001 pending before Lagos Slate High Court but also amounts to usurpation of the proper function of the court, a court of record. It also has the effect of inciting people against the constituted authority; in addition to bringing the court into contempt and ridicule…. The crux of the matter is that the learned counsel for appellants and the purveyor of the publication respectfully seems to have prejudged the issues in both the suit and the pending application before the learned trial judge, ………The publication in my humble opinion had greatly prejudiced the fair trial of the action. By advising and warning the public not to obey an enacted law was in no doubt inviting chaos and a state of anarchy. ….. When a party to a suit or counsel on his behalf take steps outside the court designed to affect the out come of a pending suit or application, that person would be acting in contempt of the proceedings. The lower court was right in the step it took and I wish more courts would be alert to their responsibility to protect the integrity of the proceedings in those courts…… See paragraph 26 of the Halsbury’s Laws of England, Fourth Edition, which states as follows: “26. Prejudging Issues. Comments on pending legal proceedings which purports to prejudge the issues which are to he tried by the court is intrinsically objectionable as being usurpation of the proper function oft the court. This it seems may be punished or restrained as contempt irrespective of the effect or likely effect on the particular proceedings in question.” (underlining mine)
In BUKOLA V OSHUNDAHUNSI (2012) 5 iLAW/CA/IL/35/2011, one major issue for determination was: “effect of a subsequent action of a defendant who has been previously notified of the pendency of a suit seeking an injunction against him.” The 2nd and 3rd respondents had issued a C of O in respect of the land in dispute three days after the suit was filed and after they (the 2nd and 3rd respondents) had been served with the originating processes. The court set aside the said C of O on that ground, among others. In that case, 2nd and 3rd Respondents issued the purported Right of Occupancy on 3rd of August, 2005, during the pendency of the suit. This kind of arbitrary conduct which has the tendency to demean and diminish the authority of the Court was condemned by the Supreme Court long time ago and that any such act is liable to being nullified. In the case of Military Governor of Lagos State v. Ojukwu (1985) 2 NWLR (pt. 10) 906 at 809, the Supreme Court held thatc “after a Defendant has been notified of the pendency of a suit seeking an injunction against him even though a temporary injunction has not been granted, he acts at his peril and subject to the power of the Court to restore the status quo wholly irrespective of the merits as they may be ultimately decided.”
What is more? IN ELF MARKETING (NIGERIA) LIMITED V J. L. OYENEYIN AND SONS LIMITED [1995] 7 NWLR (pt. 407) 371, the plaintiff in an application/suit had sought the following relief, among others: “an order restraining the defendant, their agents or servants or otherwise howsoever from removing from the jurisdiction of this Honourable Court the following equipment illegally removed by the defendant from the Petrol Filling Station of the plaintiff along Kilometer 5 Okitipupa-Ore Road, Okitipupa, viz: (i) 4 dispensing petrol pumps, and (ii) lister generating set; both in the lawful custody of the police, Nigeria Police Station, Okitipupa.” While the matter was still pending in court, and when the order had not been granted, the defendant/respondent went ahead and removed the 4 dispensing petrol pumps from jurisdiction. In reaction, the lower court immediately ordered as follows: “As to the 4 dispensing petrol pumps it is hereby ordered that the defendants should return them to Okitipupa Judicial Division within 14 days of the date of this order until the final determination of the substantive action.” The Court of Appeal upheld the order of the lower court. In its judgment, the Court of Appeal ststaed as follows”
“In the first place, it was while the process for an interlocutory injunction was pending in court that the applicant removed the four dispensing petrol pumps from the police custody in Okitipupa within the jurisdiction of the court. The removal, for all intents and purposes, was illegal and in defiance of the process of the court. In order to maintain the statu quo the learned trial Judge had to order that the pumps be returned to the jurisdiction of his court from where they were removed. After considering the application before him the learned trial Judge held that a case for an interlocutory injunction had been made out. Whether the injunction is mandatory or prohibitive is immaterial provided the justice of the case was met and especially as the new situation was caused by the illegal act of the applicant by removing the pumps with a full knowledge of a court process to prevent it from removing them. The applicant company cannot be allowed to hide under its illegal act….. In this application before this court the applicant with full knowledge of a motion for injunction against it pending in court removed the four pumps from police custody and took them away to its office in Lagos. It does not lie in its mouth to complain of a mandatory injunction ordering the applicant to return the pumps….. On the whole I refuse to exercise my discretion to aid an applicant who has no respect for the rule of law….. If anything, it is the lack of respect for the law on the part of the applicant by removing the pumps while proceeding for injunction were pending in the court against the applicant and its defiance of an order of the court that will have the effect of foisting on this court a situation of complete helplessness.”
The Independent National Electoral Commission of Nigeria has indirectly, reportedly acknowledged that this is the correct position of the law when (on Thursday night: June 30, 2016) the electoral umpire reportedly categorically denied being served with the Notice of Appeal filed by Dr Ikpeazu’s lawyers or with any application for stay of execution or injunction. What the Commission was saying, impliedly, is that, if it (INEC) had been served with the Notice of Appeal and the application for stay of execution, it (INEC) would not have issued the Certificate of Return to Mr Ogah. However, in a statement issued later on Thursday, night, June 30, 2016, the Attorney-General of Abia State (Mr. Umeh Kalu) declared that INEC had lied in its (INEC’s) claims that it (INEC) did not receive the Notice of Appeal and Motion for Stay. See http://theeagleonline.com.ng/we-served-inec-notice-of-appeal-abia-state-government/ and http://metrowatchonline.com/abia-crisis-documents-show-inec-lied-commission-served-notice-appeal/. The Attorney-General then went ahead and produced an affidavit of Proof of Service, (deposed to at the Federal High Court on Wednesday, June 29, 2016). The Proof of Service (which has since gone viral online) shows, clearly, according to the Honourable A.G., that INEC was indeed served with the two important documents and the acknowledgement/proof of service was signed for by one Saleh N. Ibrahim, Senior Clerical Officer at the Legal Services Department of the Commission’s Headquarters, Abuja, who stamped the Notice of Appeal and Motion for Stay/Injunction with the INEC’s official stamp by 12.50pm on Wednesday, June 29, 2016. The Proof of Service Further shows that all the respondents in the matter/appeal were duly served with the two documents on June 29, 2016 (Wednesday). If this is true, then since this was a whole of twenty-four (24) hours before the time INEC issued the Certificate of Return to Mr Ogah, there appears to be a violation of the principle re-stated above. See the Proof of Service as published online on http://metrowatchonline.com/abia-crisis-documents-show-inec-lied-commission-served-notice-appeal/ and on
A similar incident had played out in Osogbo, Osun State in 2010. The Plaintiffs (Alhaji Nasiru Oyeniyi, head of Gbaemu compound and Pa Claudious Fayoyiwa, head of Olu-Awooba compound, on behalf of Sogbo ruling House of Osogbo against the Oyetunji and the kingmakers) had filed both a Motion Ex parte and a Motion on Notion, praying the Honourable High Court for an order of injunction, restraining all the defendants, including the then Governor of Osun State, from appointing anybody as the Ataoja of Osogbo pending the hearing and determination of the substantive suit. However, while the case was adjourned to September 8, 2010 for hearing of the Motion on Notice, before the said adjourned date, and after having been duly served with all the processes, the Osun State Government went ahead and presented the Staff of office to Alhaji Jimoh Olanipekun, thereby installing him as the 16th Ataoja of Osogbo, in spite of the pending suit. On 18 February 2011, exactly five months and a week on the throne, the trial court presided over by His Lordship, Honourable Justice Yinka Aderibigbe, of an Osogbo High Court, brought down the curtain on the reign of the Oba Jimoh Olanipekun as the Ataoja of Osogbo, ordering him to vacate the throne immediately. The Court ruled thus:
“All the processes leading to the nomination of Jimoh Olanipekun to fill the vacant stool of the Ataoja of Osogbo through the purported Larooye royal house of Osogbo during the pendency of the suit and the motion for interlocutory injunction is hereby set aside. The selection of Olanipekun to fill the vacant stool of Ataoja of Osogbo by the kingmakers in the suit during the pendency of the suit and the motion for interlocutory injunction is hereby set aside. The approval and issuance of the instrument of office to Olanipekun as the Ataoja of Osogbo in September 2010 by Governor Oyinlola during the pendency of the suit and the motion for interlocutory injunction is hereby set aside,” (see also: http://www.vanguardngr.com/2011/06/hcourt-dethrones-ataoja-of-osogbo/ or http://www.pmnewsnigeria.com/2011/02/18/court-sacks-ataoja-of-osogbo/)
In summary, therefore, once a party to an action is aware that an injunction or prohibitory order is being sought against him in a court, he proceeds at his own detriment if he goes ahead and does that which is sought to be restrained, merely because an interlocutory injunction has not yet been obtained against him. In such a case, what the courts will do and have always done is to undo what the defendant or respondent has proceeded to do in the meantime irrespective of the merits of the matter. In such a situation an order of disciplinary injunction is granted to revert preemptive action already taken by one of the parties, and this is done without the court considering the merits of the case. See the cases of EZEGBU V FIRST AFRICAN TRUST BANK LIMITED (CA4) (1992) 1 NWLR (Pt. 220) 699; and Vaswani Trading Co. v. Savalakh & Co. (1972) 1 All NLR 283.
In the instant case (the Abia State scenario), INEC has now admitted that it was served with the Notice of Appeal even though it denied being served any application for stay or injunction pending appeal. The question now is, does this justify the issuance of a Certificate of Return when a suit was pending to the knowledge of INEC? No, in my humble opinion. The mere fact that INEC was already aware of the pending appeal was sufficient reasons for INEC (as an impartial umpire) to have waited for the final outcome of the matter on appeal before issuing any Certificate of Return. I offer this humble advice in view of the strong warning issued by the Supreme Court in the PETER OBI V. INEC (SC No:2) [2007] Vol. 9 M.J.S.C 1 as follows; “the 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for the rule of law, which the Independent National Electoral Commission ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it.”
In that case (PETER OBI V. INEC), the INEC had proceeded to conduct the election into the office of the Governor of Anambra State, in spite of the suit by Governor Obi of Anambra State seeking an injunction to restrain the electoral body. The Supreme Court, while setting aside the said election held thus:
“…as at 14th April 2007 when the 1st respondent (Independent National Electoral Commission) was conducting gubernatorial election in Anambra State, the seat of the governor of that State was not vacant. That election was a wasteful and unnecessary exercise. The 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for the rule of law, which the Independent National Electoral Commission ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it.” In WHYTE V KWANDE (APPEAL NO.CA/PH/161/99), in a judgment delivered on January 4, 2007, the Court of Appeal, Port-Harcourt division, His Lordship, IBRAHIM MOHAMMED MUSA SAULAWA, JCA put the situation this way: “I should have thought that fairness, even handedness and above all respect for rule of law would characterize the behaviour and standards of such men who found themselves in public offices”
This point was further stressed in the case of AMAECHI V. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227, where the Supreme Court of Nigeria (per PIUS OLAYIWOLA ADEREMI, JSC) in clear terms voiced its anger against lawlessness in the following words:
“The decision to substitute Celestine Omehia for Rotimi Chibuike Amaechi by the 3rd Respondent (P.D.P) during the period of pending gubernatorial election represents a display of very grave display of political rascality and an irresponsible and wanton disrespect for rule of law. No responsible person or group of persons who parade themselves as having respect for rule of law and due process, can be credited with such a dastardly act. The 1st Respondent, by acceding to the request of the 3rd Respondent for the substitution, has painted a picture of itself as a spineless body whose pre-occupation is dissemination of injustice. It (1st Respondent) has forgotten or it has thrown into the winds the position carved for it by the Constitution of the land -An unbiased umpire. Finally, on this point, I wish to say that in all countries of the world which operate under the rule of law, politics are always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts.”
Once again in MILITARY GOVERNOR OF LAGOS STATE VS. OJUKWU (2001) FWLR (Part 50) 1779 at 1802 & 1799, the Supreme court stressed that “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which profess loudly to follow the rule of law, there is no room for the rule of self help by force to operate.”
In the final analysis, the question must now be asked, in the midst of this crisis, who, in the eyes of the law, is the current Governor of Abia State of Nigeria? The answer is simple, based on all the aforesaid. Dr Ikpeazu is and must remain the Governor of Abia State pending the full determination of the cases on appeal. On the other hand, the Court of Appeal and the Supreme Court should make haste and apply the same level of speed they had applied to the cases challenging Professor Chukwuma Soludo’s nomination as the Governorship candidate of the PDP in for Anambra State in 2009/2010. This appeal should be given an accelerated hearing and judgment should be handed down without any delay, so that the dust already raised by this scenario could be finally settled. The Supreme Court has repeatedly stressed that “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which profess loudly to follow the rule of law, there is no room for the rule of self help by force to operate.” (see for example Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802 & 1799) (see also http://www.nigeriansinamerica.com/on-the-rape-of-the-rule-of-law-in-ogun-state-house-of-assembly/)
I know the courts would once again live up to the reasonable expectations of the Nigerian watching public and settle this matter now. All eyes are on the the Court of Appeal, to which Dr Ikpeazu has lodged an appeal (since June 29, 2016) against the judgment of Hon Justice Okon Abang of the Federal High Court, Abuja. (see http://nigeria.tvcnews.tv/2016/06/30/governor-ikpeazu-appeals-high-court-judgement/ or http://thewillnigeria.com/news/ikpeazu-appeals-against-judgment-says-he-remains-abia-governor/); Hon Justice Abang had in the said judgment, delivered on June 28, 2016, found that Dr Ikpeazu was not qualified to stand as an aspirant for the PDP governorship primary elections for Abia State, which held in December 2014, on grounds that Dr Ikpeazu had submitted false information to his party, the Peoples Democratic Party, for the said primaries. The learned Judge consequently ordered the Governor, Dr Okezie Ikpeazu, to vacate his office immediately. The court also ordered the INEC to immediately issue a Certificate of Return to the aspirant that had come second in the said primary election (Mr Uche Ogah). (see http://punchng.com/breaking-court-orders-abia-gov-ikpeazu-to-vacate-office/). There is also the Abia State High Court, which (on June 30, 2016) issued an injunction restraining the Chief Judge of Abia State from swearing in Mr Uche Ogah pending the determination of the matter before the court. (see http://www.africanexaminer.cor om/court-restraints-abia-cj-from-swearing-in-ogah/ or http://pulse.ng/local/in-abia-court-bars-chief-judge-from-swearing-in-ogah-as-governor-id5216224.html).
While we await the final determination of this matter by our courts, it is important to repeat, just for emphasis’ sake, the Nigerian Supreme Court’s advice in AMECHI V. INEC (supra): “in all countries of the world, which operate under the rule of law, politics is always adapted to the laws of the land and not the laws to politics. Therefore, let our political operators allow this time-honoured principle to sink well into their heads and hearts.” We pray the rule of law prevails in the end, in the very best interest of our democracy. So help us, God. Amen. Amin.
Written by: Sylvester Udemezue (mrudems@yahoo.com)
Sylvester C. Udemezue 