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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 8TH DAY OF JUNE 1990

SC 174/1989

BEFORE THEIR LORDSHIPS

ANDREWS OTUTU OBASEKI                         –              JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI                                 –              JUSTICE, SUPREME COURT

ABDUL GANIYU OLATUNJI AGBAJE          –              JUSTICE, SUPREME COURT

PHILIP NNAEMEKA-AGU                                              –              JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALI                                             –              JUSTICE, SUPREME COURT

BETWEEN

  1. 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.

Appeal Allowed

Counsel

Chief F.R.A. Williams, S.A.N.

With Alhaji Abdul Rasaq, S.A.N., Durojaiye, Y.A. Bayero

……..

For the Appellant

Chief G.O.K. Ajayi, S.A.N.

With O. Ayanlaja, S.A. Adebokun and A.A. Oriola

For the Respondents

 

 

 

 

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