Constitution of Nigeria

Court of Appeal
High Courts

Home Page

Law Reporting

Laws of the Federation of Nigeria
Legal Education
Q&A
Supreme Court
Jobs at Nigeria-law

 

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

 

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 plaintiff’s 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 position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at the trial. If, on the other hand, damages would not provide adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should consider whether on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.

 

It would appear from the affidavit in support that the respondent was concerned about selling or otherwise alienating the shares in dispute. I therefore agree with Chief Ajayi, S.A.N., that since respondent did not make a case for interfering with the ownership rights of the appellant over the shares, 'the trial court, by making the order as per the terms of the prayers of the respondent has given him more than he was entitled to which was wrong in law. A court is not a charitable institution and a party must prove his case to be entitled to the judgment of the court.

 

In the case of the instant appeal, the trial court can only look at the whole case to decide whet her to grant an injunction or not as Lord Denning said in Hubbard's case (supra). The trial Judge cannot in this case look at the parties pleadings and proceed to find that the appellant was a trustee of the shares in question, which is one of the important things to be determined at the trial.

 

This means, in effect, that the trial court confines himself in the circumstances of this appeal to the evidence disclosed in the affidavit of the parties. Pleading are not evidence on oath and should be disregarded in this consideration."

 

The plaintiff was dissatisfied with the decision and has appealed to this court against it on 3 grounds. The three grounds have earlier on in this judgment been set out in full.

 

Briefs of argument were filed by the parties and at the oral hearing, learned counsel for the parties adopted their respective briefs. In addition, oral submissions were made by counsel in amplification of their briefs.

 

Chief F.R.A. Williams, S.A.N., learned counsel for the appellant formulated two questions for determination in this appeal. These two questions are:

 

1.     whether the decision of the court below is one which a tribunal properly instructed as to the law applicable to the facts and circumstances of a case of this sort, can reasonably arrive at; and

 

2.     whether the court below acted correctly in deciding to set aside the decision of the High Court on the ground that the order of injunction granted by that court reversed the status quo and did not maintain it.

 

Learned counsel then submitted that the appeal is only on the question of scope of injunction. This, he contended, is because the Court of Appeal watered down the order of injunction granted by the High Court (Thomas, J.) and left voting rights out of the scope of injunction. He submitted that the court below was wrong to have done so. He contended that the learned Justices of the Court of Appeal (Kalgo, J.C.A. and Awogu, J.C.A.) were wrong to have held that the learned trial Judge should have confined himself to only the affidavit evidence and not look at the pleadings in coming to a decision on the application for interlocutory injunction. He contended that the High Court was justified in looking at the pleadings in an application of this sought. He then referred to Ladunni v. Kukoyi (1972) All N.L.R. 133 and Hubbard v. Vosper (1972)2 Q.B. 96 relied on by Kalgo, J.C.A., for his decision to exclude consideration of the pleadings in coming to a decision on the application. He finally referred to paragraph 13 of the counter-affidavit where the respondent relied on the facts pleaded in the statement of defence and counterclaim.

 

He also submitted that it is not the law that an injunction can only be granted to "maintain" the status quo and not to "reverse" it.

 

It was his contention, that the proposition that an application for an interlocutory injunction must show that there is a serious question to be tried necessarily involves an examination and consideration of the pleadings. He further stressed that the need to examine the pleadings was emphasised in the dictum of Lord Diplock in American Cyanamid v. Ethican Ltd. (1975) A.C. 396 that 'the court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words that there is a serious question to be tried'.

 

Learned counsel then cited in support Obeya Memorial Specialist Hospital v. Attorney-General of the Federation & Ors (1987)3 N.W.L.R. (Pt.60) 325 at 340; Ladunni v. Kukoyi (1972) 1 All N.L.R. (Pt.1) 133;Patel v. Smith (1989)1 W.L.R. 853 and Manchester Corporation v. Connolly (1970)1 Ch. 420 at 427 D and Section 18(1) of the High Court of Lagos State. He then referred to the scope of injunction claimed by the plaintiff, which is in respect of all the rights attached to the said shares. He then submitted that the claim to beneficial ownership of shares registered in the name of the defendant involves all the rights attaching to the shares specified more especially as plain-tiff averred that he provided the money for the acquisition of the said shares. He then cited Kirby v. Wilkins (1929)1 Ch. at 444 at p.454 where Romer, J., (as he then was) declared that "a shareholder holds shares as a bare trustee for a third person, he is no doubt obliged to exercise his voting power in the way that the cestui que truste desires." He then submitted that the court below erred when Kalgo, J.C.A., said there was no evidence to justify making an order depriving the appellant of the right to exercise this ownership rights on the shares in dispute which rights he has exercised for ten years before the action "was filed" and also when Awogu, J.C.A., declared that 'The rights need to be protected, and the appellant has been doing so prior to this action and should continue to do so. That is the status quo."

 

He finally submitted that the Court of Appeal erred in setting aside the discretion exercised by Thomas, J., and urged the court to approve the guidelines laid down by Lord Diplock in Hadnor Productions Ltd. v. Hamilton (1983) A.C. 191 at 220. The court below is not allowed to substitute its own discretion for that of Thomas, J., when there was no cause to interfere.

 

In reply, Chief G.O.K. Ajayi, S.A.N., repeated his objection to the grounds-ground 1(b) and ground 2 of the grounds of appeal before he submitted that the appellant's brief dealt with issues not raised by the grounds of appeal. He contended that ground 1(a) did not specify the other basis upon which an order of interlocutory injunction could be granted or should have been granted in this case. He then proceeded to examine grounds 2 and 3 and then submitted that whether or not the Court of Appeal held that it was incorrect for the High Court to have looked at the pleadings was not an issue raised in any of the grounds of appeal. He also submitted that the plaintiff's contention that the order of the Court of Appeal curtailed the order of in-junction was not raised in the grounds of appeal. He contended that the arguments in the brief bore no relation to ground 2 of the grounds of appeal.

 

On the complaint of reversal of the status quo against the High Court by the Court of Appeal, he submitted that there was no complaint against the determination of the Court of Appeal that what the High Court did was to reverse the status quo. He contended that there was no ground of appeal to support appellant's submission in the brief that the justices of the Court of Appeal overlooked one of the issues raised before the Lagos High Court. He then submitted that there was also no ground of appeal to support the challenge to the splitting of the disputed rights. He submitted that the Supreme Court had held in a number of cases that where points canvassed in the Brief of Argument are not supported by any grounds of appeal, the court will ignore that portion of the brief citing the case of Western Steel Workers v. Iron & Steel Workers (1987)1 NWLR (Pt.49) 284 at 304 per Oputa, J.S.C. He submitted that as ground 2 was not argued and developed in its context in the brief, it should be taken as abandoned.

 

Finally, learned counsel for the respondent submitted that the appeal must fail as the ground upon which the decision of the Court of Appeal was given remains unchallenged.

 

I have set out the submissions of counsel in detail so as to see whether the argument of counsel deals with the portion of the decision complained of. It is a cardinal principle in adjudicating in appeal cases to consider the grounds of appeal in relation to the portion or part of the decision complained of. The part of the decision of the Court of Appeal complained of in the instant appeal as stated in the notice of appeal reads:

 

The portion of the decision curtailing the scope of injunction granted by the High Court.

 

The complaints in grounds 1,2 and 3 of the grounds of appeal can only relate to that portion of the decision curtailing the scope of the injunction. They must not be examined in other lights. Although the grounds of appeal could have been drafted more elegantly and with greater precision and use of aggressive words, the grounds as drafted are not vague.

 

Ground 1 complains of an error of law. The nature of the error in law given is the reversal of the, decision of the High Court and the particulars are that having regard to the circumstances of the case as disclosed in the pleadings and affidavit evidence the order of interlocutory injunction pending trial made by the High Court ought not to have been reversed. This ground, in my view, has not violated the conditions for validity laid down in Order 8 Rule 2(2) of the Supreme Court Rules, 1985.

 

The argument of counsel for the appellant that the Court of Appeal's rejection of any consideration of the pleadings in spite of defendant's affidavit evidence that he relies on the statement of defence in answer to plaintiff's affidavit evidence of beneficial ownership of the shares led it to interfere erroneously and unjustifiably with the order of interlocutory injunction made by the High Court, is a development and an elaboration of this ground. Particulars (a) of the ground taken by itself may rightly be regarded as hanging in the air but taken as the particulars of error complained of attacks the decision of the Court of Appeal for considering only the requirement to maintain the status quo when the power given to the court to grant injunction where it is 'just and convenient' involves a consideration of other basis within the context of 'just and convenient'. The provisions of section 18(1) of the High Court Law, Cap 52 of the Laws of Lagos State states that:

 

The High Court may grant …… an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do.

 

gives strength to this argument. This is so having regard to the provision of sub-section (3) of section 18 which confines itself to only an application for an injunction to prevent any threatened or apprehended waste or trespass. This subsection reads:

 

If, whether before or at or after the hearing of any civil cause or matter, an application is made for an injunction to prevent any threatened or apprehended waste or trespass, the injunction may be granted if the court thinks fit whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title and whether the estates claimed by both or by either of the parties are legal or equitable.

 

If the ground had been vague and without the nature and particulars of the error, it would have been liable to be struck out and I would not have hesitated to strike it out as there are a series of judicial authorities in support of such course of action. See

 

Ayinla v. Adigun (1986) 3 N.W.L.R. (Pt.30) 511 B

Anyaoke v. Adi (1986) 3 N.W.L.R. (Pt.31) 731

Amyeye v. Ashamu (1987)1 N.W.L.R. (Pt.49) 267

Anakwenze v. Aneke (1985)1 N.W.L.R. (Pt.4) 771

Mba Nta v. Anigho (1972)5 S.C. 156 at 165

Okeke Amadi v. Ok eke Okoli (1977) 7 S.C. 57 at 63 to 64

National Investment and Properties Co. Ltd. v. The Thompson Organisation Ltd. & Ors. (1969)1 All N.L.R. 138 at 142.

 

However, the ground is valid and I shall consider the arguments and submissions on it. Learned counsel for the appellant has referred this court to the portion of the judgment where Kalgo, J.C.A., with whom Awogu, J.C.A., agreed said:

 

The trial Judge cannot, in this case, look at the parties pleadings and proceed to find that the appellant was a trustee of the shares in question which is one of the important things to be determined at the trial.

 

This means in effect, that the trial court must confine himself in the circumstances of this appeal, to the evidence disclosed in the affidavit of the parties. Pleadings are not evidence on oath and should be disregarded from consideration.

 

An application for an interlocutory injunction must be based on a pending action and cannot be considered in total isolation from the pleadings in the writ of summons, statement of claim and statement of defence if filed or to be filed. However, the affidavit must, in giving the facts on which the application is based, not omit to refer to the pleadings if already filed or about to be filed. This has been done in the instant appeal. When the courts shuts its eyes to the pleadings referred to in the affidavit evidence, its ability to do justice in the application or to make an order that is just or convenient is curtailed as the compass of vision is severely restricted. It was this restriction of the vision of the court that led it to hold that:

 

On the whole, there is no evidence before the trial court in the affidavit in support of the application for interlocutory injunction 6 to justify making an order depriving the appellant of the rights to exercise his ownership right on the shares in dispute, which rights he has exercised for ten years before the action was filed.

 

If the learned Justice had looked at not only the affidavit evidence but also the pleadings, it would have been abundantly clear that ownership of the shares is in dispute and that before the dispute arose, and that plaintiff claimed that all the ownership rights attaching to the shares were exercised by defendant on the direction of the plaintiff who claims to be the beneficial owner.

 

In any case, at the stage at which an order of interlocutory injunction is made, the rights of the parties are yet to be determined and there must be a serious question on this. The principles on which the injunction should be granted and which guides the courts are well set out in American Cyanamid v. Ethican Ltd. (supra) and Obeya Memorial Specialist Hospital v. Attorney-General of the Federation and others (supra); (1987) 3 N.W.L.R. (Pt.60) 325. There being no violation or breach of those principles, the learned Justices of the Court of Appeal were in error to have interfered with the order made by the learned trial Judge.

 

The plaintiff is sui juris and it is the law that in such cases the trustees of a trust vote as all the beneficiaries may direct. See Palmer's Company Precedents 17th Edition page 499.

 

It is the law also that where a share holders holds shares as a bare trustee for a third person, he is obliged no doubt to exercise his voting power as the cestui que trust desires. See

 

Kirby v. Wilkins (1929) 2 Ch at 444 and 454 

Butt v. Kelson (1952) Ch 197

 

The status quo required to be preserved in the instant appeal is the ownership rights as claimed by the defendant (for a trespasser does not by the very act of trespass acquire possession). It is as claimed by the plaintiff status quo ante lite in before the dispute or cause of action arose. See

 

Governor of Lagos State v. Ojukwu (1986)1 N.W.L.R. (Pt.18) page 621 at pp.640-645, per Oputa, J.S.C.

Thomas v. Park (1944) 2 All F.R. 477.

 

A decision to maintain the status quo is a discretionary matter and can only be upset if the discretion has been wrongly exercised or exercised on wrong principles. See

 

University of Lagos v. Aigoro (1985)1 N.W.L.R. (Pt.1) 143.

 

The proper role of a Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the appellate court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the appeal court. See

 

Hadmor Productions Ltd. v. Hamilton (1983)1 A.C. 191 at 220 per Lord Diplock.

 

Since the dispute or issue joined in this case is as to the ownership of the shares and the application of the plaintiff which was granted was for interlocutory injunction restraining the defendant his servants or agents from exercising any right attaching to the said number of shares, the Court of Appeal was wrong in restricting the injunction to the rights the court has specified and discharging the injunction in respect of other rights including voting rights. The right to sell, the right to pledge, the right to mortgage and the right to alienate in any other way which have been placed under the order are as much constituent parts of ownership rights as voting right. Kalgo, J.C.A., to justify the severance quoted paragraphs 3, 5 and 6 of plaintiff's affidavit and commented

 

It is pertinent to observe that there are no averments in the affidavit in support complaining about the exercise of ownership rights on the shares by the appellant. In my view, having regard to the nature of the case, the issue of the exercise of ownership rights over the shares in question must be treated separately and distinctly from the possibility of selling or otherwise alienating the shares. It would appear from the affidavit in support that the respondent was only concerned about selling or otherwise alienating the shares in dispute.

 

I therefore agree with Chief Ajayi that since the respondent did not make any case for interfering with the ownership rights of the appellant over the shares, the trial court by making the order as per the terms of the prayers of the respondent's motion has given him more than he was entitled to, which was wrong in law. A court is not a charitable institution and a party must prove his case to be entitled to the judgment of the court: Ekpenyong V. Nyong (1975)2 S.C. 1.

 

These comments are not justified by the affidavit evidence or the pleadings.

 

The learned Justice, with the greatest respect, failed to advert his mind sufficiently to the facts deposed to in the affidavit in support of and to the terms of the motion before the court. A proper appreciation of paragraphs 3, 4 and 5 would have led the learned Justice of the Court of Appeal to the opposite view or conclusion. If the learned Justice had not excluded the pleading from his consideration, he would not have fallen into the error highlighted above.

 

Ground 1 succeeds. The above consideration also disposes of ground 3. Ground 3 therefore also succeeds.

 

With regard to ground 2,1 agree with Chief G.O.K. Ajayi, S.A.N.,that it is not a sound argument that the reasons for the court's rejection of the application for suspension of the order of interlocutory injunction pending the determination of the appeal to the Court of Appeal should have been followed and used to dismiss the appeal. The respondent did not apply for interim injunction. He applied only for an order suspending the injunction ordered against him pending the determination of the appeal. The facts and consideration must differ widely from the facts and arguments in the appeal.

 

Ground 2 of the grounds of appeal therefore fails.

 

Grounds 1 and 3 having succeeded, the appeal succeeds. The decision of the Court of Appeal to vary the order made by the High Court is hereby set aside. The order made by the Court of Appeal is also hereby set aside and in its stead, the order of interlocutory injunction made by the High Court is hereby restored.

 

The appellant is entitled to costs in this appeal fixed at N500.00 in this court and N300.00 in the Court of Appeal.

 

 

Judgement delivered by

Nnamani. J.S.C.

 

 I had a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C., and I entirely agree with his reasoning and conclusions.

 

As regards the preliminary objection, I am also of the view that it should be dismissed. I do agree that Order 2 Rule 29 of the Supreme Court Rules, 1985 is a complete answer to the objection. It cannot be said that the objection was brought within a reasonable time. As to the submission that some portions of the appellant's brief be struck out, it was on 15.1.90 that the application for the filing of briefs was taken. The respondent brought a motion to file his brief and to deem the brief filed on 1.3.90 properly filed. This was granted. I do agree that it would be unjust for the respondent to strike out a brief, which he had held for so long and in respect of which he had got extension of time to file a reply. The contention that portions of the brief did not relate to any ground or grounds of appeal could only have arisen because the respondent took a rather narrow view of the appellant's grounds of appeal. As to the objection to grounds 1(b) as amended and ground 3,1 do not agree too that they are vague and give no particulars. A formulation that speaks of the facts and circumstances of this case seems to include the particulars that could arise.

 

As to the ground being vague, one has to remember that the appeal challenges in effect the exercise of discretion by the Court of Appeal. When ground 3 for instance says that

 

the decision of the court below cannot be supported having regard to the facts and circumstances of the case before it

 

the meaning of the complaint being made seems clear. See Odusote v. Odusote (1971) 9 N.S.C.C. 728.

 

Coming now to the substantive appeal, it should be remembered that the only question is whether contrary to the decision of the High Court the Court of Appeal ought to have limited the injunction to the possible sale or alienation of the disputed shares. The principles governing the grant of interlocutory injunctions have been well established and I need not state them here. It is sufficient to say that an interlocutory injunction is to preserve matters pending the trial of matters in dispute. See generally on interlocutory in-junction Obeya Memorial Specialist Hospital v. Attorney-General and Ors (1987) 3 N.W.L.R. (Pt.60) 325; Kotoye v. Central Bank of Nigeria (1989)1 N.W.L.R. (Pt.98) 419; American Cyanamid Co. v. Ethicon Ltd. (1975) A.C. 306; Heayener v. Loames 34 C.L.R. 306, 326.

 

It is clear that in the instant case, the Court of Appeal failed to uphold the terms of the interlocutory injunction granted by the High Court on two grounds - that the appellant herein did not ask at the High Court for the Temedy of injunction against the exercise of voting rights and that there can be no reference to the pleadings. This is clear from two passages in the judgment of Kalgo, J.C.A., which were supported by Awogu, J.C.A. The learned Justice said:

 

It would appear from the affidavit in support that the respondent was only concerned about selling or otherwise alienating the shares in dispute. I therefore agree with Chief Ajayi, S.A.N., that since the respondent did not make a case for interfering with the ownership rights of the appellant over the shares, the trial court by making the order as per the terms of the prayers of the respondent has given him more than he was entitled to which was wrong in law.

 

Then later he continued,

 

The trial Judge cannot in this case look at the pleadings and proceed to find that the appellant was a trustee of the shares in question which is one of the important issues to be determined at the trial. This means in effect that the trial court must confine himself in the circumstances of this appeal to the evidence disclosed in the affidavit of parties. Pleadings are not evidence on Oath and should be disregarded in this consideration.

 

When one looks at these two passages it seems to me that the main point is that the affidavit did not refer to the voting rights attached to the shares. The Court of Appeal was in effect saying that there can be no reference to the pleadings and since the affidavit did not refer to voting rights that was fatal. In my view, when a court considers an application for interlocutory injunction it is entitled to look at the whole case before it all the circumstances which may include affidavit evidence, judgments or pleadings if these have been filed. All these show what is in the dispute between the parties. See Ladunni v. Kukoyi (1972)1 All N.L.R. (Pt. 1)133; Manchester Corporation v. Connolly (1970)1 Ch. 420 at 427D.

 

It is significant that in the instant appeal Kalgo, J.C.A., quoted with approval the opinion of Lord Denning in Hubbard v. Vosper (1972)2 Q.B. 84, 96; where the learned law Lord said:

 

In considering whether to grant an interlocutory injunction, the right course for a Judge is to look at the whole case. He must have regard to not only the strength of the claim but also the strength of the defence and then decide what is best to be done …..

 

The contention of the Court of Appeal that there should be no recourse to pleadings is all the more untenable when one remembers that the respondent herein in paragraph 13 of his counter-affidavit averred 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 fact therein represent the true state of the facts of the matter in issue herein and I rely upon the averment of fact contained therein in opposition to this application.

 

I am unable to see the justification for the Court of Appeal modifying the injunction granted by the High Court. It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because it would have exercised the discretion differently. See Solanke v. Ajibola (1968)1 All N.L.R. 46 at 51; also Hadmor Productions Ltd. v. Hamilton (1983) A.C. 191 at 220. There is no doubt that what is really in issue between the parties is the ownership of the disputed shares for, while the appellant 6 claims that respondent holds them in the Bank's books as his trustee, the respondent claims as owner in his own right. This is a serious issue. The ownership rights in issue here must encompass right to sell, alienate, exercise voting rights, etc. This is why in his prayer appellant prayed for restraint on the defendant/respondent from "exercising any of the rights attaching to 2,300,00 N1 shares in Societe Generale Bank" (italics mine). Even in respect of the voting rights, which the Court of Appeal excised, there is a serious issue. It is not in dispute that if a trustee holds shares in trust he has to vote in accordance with the directions of the cestui que - trust. See Kirby v. Wilkins (1929) 2 Ch. 444,454. Appellant claims respondent holds the shares in trust and has been voting according to his directions, the respondent hotly disputes this. To allow the respondent continued exercise of voting rights attaching 29% of the shares could result in the alteration of the Company altogether. Although this fear was not expressly stated in the affidavit, it seems to me to arise from the dispute on the trust.

 

In this matter, I am in agreement with the approach of the learned trial Judge. Akpata, J.C.A., (as he then was) appeared to have hit the main issue when he said in his dissenting judgment, in relation to the argument on the trust,

 

If the appellant is right of course it means he has been the beneficial owner of most of the shares if not all. In the meantime both of them should hands off the shares.

 

I would also allow this appeal and endorse all the orders in the lead judgment including the order for costs.

 

 

Judgement delivered by

Nnaemeka-Agu

 

 I have had the privilege of having a preview of the judgment of my learned brother, Obaseki, J.S.C., just delivered in this appeal. I agree with his statement of the facts, the reasoning. and conclusions.

One basic point needs to be underscored. The Court of Appeal was sitting on appeal over the manner the court of trial exercised its discretion. That discretion was that of that court of trial and not that of the Court of Appeal. That court whose discretion it was to be exercised one wav or the other considered all the materials placed before it and accepted them as sufficient for it to exercise the discretion in favour of the appellant and so proceeded to restrain the respondent from exercising any rights with respect to the shares in dispute. The Court of Appeal went into an analysis of whose rights. It split the rights to which the order applied and restrained the respondent from selling mortgaging or otherwise alienating the shares but refused to restrain him from otherwise dealing with the shares. Its reason for its decision appear to be that, apart from the sale the appellant failed to reveal by his affidavit evidence what detriment he would suffer it the respondent was not restrained.

 

Now the principles that ought to guide an appellate court while considering an appeal against a trial court's exercise of its discretion are perfectly settled. It is that, because what is in point is the discretion of the court of trial, and not that of the appellate court, it is not open to the latter court to substitute its own discretion for that of the court of trial once the trial court A exercised its discretion judicially and judiciously, unless injustice will result from the manner it has been exercised. It does not matter whether, if the discretion were that of the appellate court, it would have exercised the discretion differently if it was faced with the same facts. Its intervention can only be justified if the trial court exercised its discretion under a mistake of law or of fact, or it is shown to have taken into account irrelevant facts or disregarded relevant and material facts, or it was exercised contrary to principles of justice. This is the result of all the decided cases, including:

 

Kudoro v. Alaka (1956)1 F.S.C. 82 at p~83; (1956) SCNLR255.

Enekebe v. Enekebe (1964) 1 All N.L.R. 102

N.A. Willianis v. Hope Rising Volountary Funds Society (1982) 2 S.C. 145 and

University of Lagos &Anor. v. Aigoro(1985) I N.W.L.R. (Pt.1) 143

 

In the instant case, the learned trial Judge considered all the facts and considered them sufficient for the exercise of his discretion in favour of the appellant. Indeed the Court of Appeal did not find that those facts did not exist. Rather the fact that their Lordships confirmed a part of the order carries with it the implication that this was not a case of a court exercising its discretion when there were no grounds to sustain the exercise of it.

 

As for the materials upon which the court based its decision, I believe it was a misapprehension to suggest, as did the Court of Appeal, that in an application for interlocutory injunction, the court must confine its consideration to affidavit evidence. It appears tome, for an example, that on such important decisions as to whether or not there is an important issue to be tried, the court will be entitled, in fact obliged, to look at the substance of the claim before the court as amplified in the pleadings. The court will take them into account without necessarily deciding whether or not the averments therein have been proved. And once it is satisfied that there is at least an important issue to be tried, it should proceed to consider the balance of convenience of the parties. I must here emphasize that the old principle whereby courts required an applicant for an order of interlocutory injunction to first show a strong prima facie case before it could be entitled to the order is no longer the law since the decision of the House of Lords in American Cyanamid Company v. Ethicon Ltd. (1975) A.C. 396. That decision has been cited with approval in many decisions of this court. See, for an example, Obeya Memorial Specialist Hospital v. Attorney General of the Federation & Ors. (1987) 3 N.W.L.R. (Pt.60) 225, at p.340. By confining itself to affidavit evidence only, the learned Justices of the Court of Appeal in their majority judgment fell into the error of looking for affidavit evidence where other materials could suffice.

 

In my view, this wrong approach resulted, wrongly in my view in the learned majority Justices of the Court of Appeal substituting their own discretion for that of the trial court. That they ought not have done. See Hadmor Productions Ltd. v. Hamilton (1983) A.C. 191 at p.220.

 

For the above reasons and those contained in the lead judgment of my learned brother, Obaseki, J.S.C., which I adopt as my own, I allow the appeal and subscribe to the orders made in the lead judgment.

 

 

Judgement delivered by

Wali.J.S.C.

 

I have had a preview of the lead Judgment of my learned brother, Obaseki, J.S.C., and with which I entirely agree. The preliminary objection raised by Chief G.O.K. Ajayi, S.A.N., in respect of Grounds 1(b) and 3 of the Grounds of Appeal and the arguments contained in paragraphs 3.4, 4, 5 and 6 of the appellant's brief of argument are without merit and therefore over-ruled.

 

The case of Hubbard v. Vosper (1972) 2 Q.B. 84 at 96 stated what the court is entitled to look at when confronted with an application for an interlocutory injunction pending trial. In that case, Lord Denning stated the principle as follows:

 

In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard to not only the strength of the claim, but also the strength of the defence, and then decide what is best to be done. (Italics supplied for emphasis)

 

The learned Justice of the Court of Appeal [Kalgo, J.C.A.] stated the above principle in his lead judgment where he said –

 

In the case of the instant appeal the court can only look at the whole case to decide on whether or not to grant an injunction as Lord Denning said in Hubbard's case (supra).

 

This will certainly mean looking not only at the affidavit evidence and the relevant documents exhibited, but also include the parties' pleadings. This is explicit in the statement of Lord Denning in Hubbard's case (supra) where he said –

 

He must have regard to not only the strength of the claim, but also the strength of the defence …..

 

Instead of following and applying this principle, the learned Justice contradicted himself and said –

 

The trial judge cannot in this case look at the parties' pleadings and proceed to find that the appellant was a trustee of the shares in question which is one of the important issues to be determined at the trial

 

This means in effect that the trial court must confine itself in the circumstances of this appeal to the evidence disclosed in the affidavits of the parties. Pleadings are not evidence on oath and should be disregarded in this consideration.

 

Although pleadings are not evidence on oath they form the bedrock of the "whole case" and the trial court was justified in looking at them in arriving at its conclusion.

 

The appeal succeeds and it is allowed. The judgment of the Court of Appeal is set aside and in place thereof the order of interlocutory injunction granted by the trial court is restored.

 

I abide by the order of costs made in the lead judgment.

 

 

Dissenting

Judgement delivered by

Agbaje. J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother Obaseki, J.S.C. I agree with him that the respondent's preliminary objection to the appellant's appeal should be refused. However, I very much regret I cannot agree with him that the appellant's appeal has merit and should be allowed.

 

The respondent's preliminary objection is contained in a notice by the respondent of intention to rely upon preliminary objection dated 28/2/90 and it says as follows:

 

Notice By Respondent Of Intention To Rely Upon Preliminary Objection

 

Take Notice that the Respondent herein named intends at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-

 

The appeal is incompetent having regards to the papers filed herein and the same should be dismissed.

And Take Notice that the grounds of the said objection are as follow:-

 

1.     Ground 1(b) of the grounds of appeal 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.

 

2.     Ground 3 of the grounds of appeal is vague and should be struck out on 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.

 

3.     The arguments contained in paragraphs 3.4, 4, 5 and 6 of the Brief are incompetent as they are not supported by the ground of appeal filed herein.

 

The objection is concerned in part with the grounds of appeal in the appellant's notice of appeal filed on 24/4/89 and as amended by the order of this court on 2/3/90 in this appeal and in part, with the appellant's brief of argument filed on 19/2/90. I reproduce below the grounds of appeal as amended:-

 

(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 courts find 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 the 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 for 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 is not at liberty to make fundamental departure from the reasons given in its ruling on the defendant's application for stay of the order of the High Court for injunction pending appeal.

 

(iii)   The decision of the court below cannot be supported having regard to the facts and circumstances of the case before it.

 

As regards the objection to ground (1) of the appellant's grounds of appeal, Chief Ajayi, S.A.N., counsel for the respondent submits that ground one of the grounds of appeal in so far as it says that the court below erred in law in reversing the decision of the High Court without giving the particulars of the error alleged is vague and offends against Order 8 rule 2(2) of the Supreme Court Rules 1985 which says, inter-alia, that if a ground of appeal alleges error in law the particulars and the nature of error shall be given. He then refers to order 8(2)(4) which says:-

 

(4)    No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.

 

He then asks us to strike out this ground of appeal.

 

Chief Ajayi submits that his arguments on the objection to ground 1 cover the objection to ground 3 as well.

 

In reply Chief F.R.A. Williams, S.A.N., submits that the objection to the grounds is too late for it to be entertained. For this submission he places A reliance on order 2 rule 29 (1) of the 1985 Rules which says:-

 

29(1)    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 any proceedings or any document, judgment or order therein shall only be entertained by the Court B if it is made within a reasonable time and before the party apply mg has taken any fresh step after becoming aware of the irregularity.

 

He then submits that the respondent having appeared in court on 8/2/90 and taken orders for the filing of briefs must be taken to have taken a fresh step in the proceedings barring him from making the application at issue. In the circumstances in which the order for the filing of briefs by counsel in this appeal was made by this court on 8th February, 1990, it will not, in my view, be right to hold that counsel who has taken that order from us has on that day taken a fresh step of his own volition in this appeal. It will be recalled that on 8/2/90 counsel were recalled to be told that the ruling fixed for 2/3/90 on the interlocutory application in the interlocutory appeal from the lower court would no longer be given and instead, the appeal itself would be heard on that day. It was as a sequel of that that the order for the filing of brief was made by us.

 

True, the preliminary objection of counsel for the respondent was filed on 28th February, 1990. But on 2/3/90, before arguments were heard on the objection Chief Ajayi, S.A.N., applied to court for an extension of time within which to file the respondent's brief of arguments, which application being unopposed was there and then granted. I have not the slightest doubt that the respondent having made through his counsel this application to the court has taken a fresh step in the proceedings after becoming aware of the irregularity he is complaining of in his notice of preliminary objection.

 

On the expression "taken any fresh step after becoming aware of the irregularity" in order 2 rule 2 of the Rules of the Supreme Court 1965 U.K. which is in pari materia with our order 2 rule 29, Note 2/2/2 to the English Rules in The Supreme Court practice 1976 Volume 1 says:-

 

taken any fresh step after becoming aware of the irregularity. A fresh step for the purpose of this Rule is one sufficient to constitute a waiver of the irregularity. 'In order to establish a waiver you must show that the party has taken some step which is only necessary or only useful if the objection has been actually waived or has never been entertained" Rein v. Stein (1892) 66 L.T. 469,per Cave J. at p.471) …..

 

Re Chittenden, decd. (1970) l W.L.R.1618;(1970) All ER. 562 (service of originating summons after expiration of twelve months, but where an order for extension had been made); in each case the appearance waived the irregularity.

 

Similarly other steps taken, with knowledge of an irregularity. either with a view to defending the case on the merits (Boyle v. Sacker (1889) 39 Ch.D 249; C.A.: Fry v. Moore (1889) 23 Q.B.D. 395, C.A.)

 

I am satisfied that the application for the extension of time to file respondent's brief of argument is only necessary or only useful if the respondent's objection has been waived. For the above reasons I agree with counsel for the appellant, Chief Williams, S.A.N., that it is now too late to entertain the respondent's preliminary objection.

 

Even on the merits I do not think I am persuaded by the arguments of counsel for the respondent, Chief Ajayi, S.A.N., that the grounds of appeal complained of are vague. Ground III does not say that the decision of the Court of Appeal is against the weight of evidence which raises an issue of fact and which is permissible under order 8 rule 2(4) of our 1985 Rules. Ground 3 says:-

 

(iii)     The decision of the court below cannot be supported having regard to the facts and circumstances of the case before it."

 

As to what amounts to error in law in the exercise of discretion by a tribunal Lord Denning, M.R., said in Instrumatic Ltd. v. Supabrase Ltd. (1969)2A11 ER. 131 at 132:-

 

There are many tribunals from which an appeal lies only on a point of law"; and we always interpret the provision widely and liberally. In most of the cases the tribunal finds the primary facts (which cannot be challenged on appeal); and the question at issue is what is the proper inference from those facts. In such cases, if a tribunal draws an inference, which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts. That was settled, once and for all, in Edwards (Inspector of Taxes) v. Bairstow (1). In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion in a way which is plainly wrong, it errs in point of law, and its decision can be reviewed by the courts." (Italics mine).

 

I understand ground 3 of the grounds of appeal as saying giving the primary facts in the matter now on appeal before us, that is the facts and circumstances of this case, either there is nothing i.e. no evidence to support the decision of the court below or that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.

 

On the same point I refer to the following passage in judgment of Lord Widgery The Lord Chief Justice in Global Plant Ltd. v. Secretary of State for Health and Social Security, The Times Law Report June 10, 1971:-

 

The question whether it was a matter primarily of law or fact was considered in Simmons v. Health Laundry Co. (1910) 1 K.B. 543 at 548 & 553) and more recently by Mr. Justice Parker in Phipps v. Minister of National Insurance (unreported, November 30, 1951) and by Mr. Justice Diplock in Terrar v. Minister of pensions and National Insurance (unreported, July 13, 1960). In Morren v. Swinton and Pendlebury Borough Council (1965)1 W.L.R. 576 the issue of contract of service or no had to be determined substantially from a written contract, and Morren's case in no way destroyed the validity of the approach in Terrar's case.

 

Therefore it seemed to his Lordship that he must first examine the minister's decision to see whether it contained a false proposition of law ex facie. It did not. It was next relevant to consider whether the decision reached by the minister was one, which was supported by no evidence, in which event his decision would be wrong in law. That conclusion was not open in the present case because there clearly was some evidence on which the conclusion could be supported.

 

Then his Lordship had to consider whether in the words of Lord Radcliffe in Edwards v. Bairstow (1956) A.C. 14 at 36)" the facts found were such that no person acting judicially and properly C instructed as to the relevant law could have come to the determination under appeal"

 

His Lordship said: "It is not." (Italics mine).

 

I am therefore inclined to the view that a ground of appeal such as ground 3 in this case is in order in an appeal on point of law against the exercise of a court's discretion.

 

What I have just said equally disposes of the objection to particular 1(b) to ground one.

 

The objection to the appellant's brief of arguments on the ground that the arguments contained in it are not supported by the grounds of appeal of the appellant is not an objection as to mere irregularity in the preparation of the brief. It is to my mind, a fundamental objection as to the competence or validity of the brief itself. So in my judgment, that objection is not caught by the provisions of Order 2 rule 29 of our Rules. However in view of what I have just said as to the validity of the grounds of appeal in this appeal I must hold that the arguments in the appellant's brief arise from the appellant's grounds of appeal, having regard to the primary facts in this case, that is to say, the facts and circumstances of the case.

 

I can now proceed to the appellant's appeal on its merits:-

 

The background to this appeal is as follows. The plaintiff Dr. Sola Saraki sued the defendant N.A.B. Kotoye, Esqr., in a High Court of Lagos State claiming against him the following reliefs:-

 

(1)    A declaration that the 4,579,460 shares standing in the name of the defendant in the Register of Share-holders 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 the 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 and 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 is dated 2nd June, 1987. Pleadings were ordered.

After the plaintiff has filed his statement of claim, he by motion on notice dated 24/6/87 applied under Sec. 18 of the High Court of Lagos State Law for the following relief:-

 

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 Societe Generale Bank (Nigeria) Limited covered by Share Certificates 000003,000006, 000011, 000018, 000022, 000024 and 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 and for such further or other orders as the Court may consider appropriate in all the circumstances.

 

The affidavit of the plaintiff in support of the application reads thus:-

 

AFFIDAVIT

 

I, SOLA SARAKI, Male, Nigerian Citizen, Medical Practitioner of 6 Amosu Street, Surulere, Lagos do hereby make oath and say as follows:

 

1.     I am the Plaintiff herein, and the facts stated are within my personal knowledge, save where otherwise indicated.

 

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 share 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 succeed, if he is permitted to part with possession of the shares, he will not be in a position to make monetary compensation to me for the value of the said shares.

 

6.     I do verily believe that unless restrained by Order of Court, the defendant will endeavour to sell or otherwise alienate the said shares thereby making any judgment I may obtain against him nugatory.

 

7.     Now produced and shown to me, marked "Exhibit 05/1" is a copy of the entry in the Register of Members of Societe Generale Bank (Nigeria) Limited showing the shares registered in the name of the defendant.

 

8.     The shares under certificates No.000028 and 000029 are not sought to be injuncted in this action, as those shares are the subject matter of another action brought by myself and my wife, Florence Morenike Saraki, against the defendant. The said action is Suit No. LD/845/87 and is presently pending in the Lagos High Court.

 

9.     I make this affidavit in good faith, and in support of my application herein for an order of interlocutory injunction restraining the exercise by the defendant of the rights attaching to the said shares.

 

The defendant filed a counter affidavit. For the purposes of the present appeal the relevant portions of the counter affidavit to the plaintiff's affidavit are as follows:-

 

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 beneficial owner of the shares purchased with the loan granted by the U.B.A. Joint Account (with the exception of a part of those shares sold by 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 shares, which have come to be registered in my name.

 

11.    That it is only in this action that the Plaintiff has for the very first time since 1977, claimed to be owner of the shares standing in my name on the Register of the Bank.

 

12.    That although I have no intention of parting with the shares standing in my name in the Bank, I say that the Plaintiff is not entitled to place any restraint on my rights as owner of shares which have stood in my name since 1977.

 

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 fact 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.

 

The application was heard by O. Thomas, J. Ruling on the application on 7.7.87, the learned trial Judge held thus:-

 

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 be tried in this case. I go to the balance of convenience. The nature of the injury, which the defendant would suffer on the one hand if the injunction was granted and he subsequently had a decision in his favour and that which the plaintiff on the other hand would sustain if the injunction is refused and he ultimately obtains judgment in his favour, is what I should consider here. The plaintiff deposed that the defendant would endeavour to sell or otherwise alienate the shares subject matter of dispute making the judgment if he obtains it nugatory. 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 Certificates 000003, 000006, 000011, 000018, 000022, 000024, 000026 and the 3,453,100 N1 share 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. (Italics mine)

 

The defendant was not satisfied with the decision of the trial court. So he appealed against it to the Court of Appeal Lagos Division.

 

Pending the determination of the appeal the defendant by motion on notice applied for an order suspending the interlocutory injunction of 17/7/87 to the trial court. Refusing the application O. Thomas, J., held in ruling of 27/10/87 as follows:

 

…..... which must in addition, be satisfied is whether refusal to suspend the interlocutory order would make the decision of the Court of Appeal nugatory if the defendant succeeds thereat. Under this can be considered the various arguments of Mr. E.F. Ayanlaja concerning the hardships to which the defendant would be exposed - inability to attend a general meeting, if a shareholder not being a party to this action, requisitioned for one, inability to vote at Board meeting if occasion arose or receive dividends. Those may amount to hardships as Mr. Ayanlaja argued but they in no wise destroy his rights to the shares or the subject matter of said order if he succeeds in the Court of Appeal

 

 …… Further, the undertakings as to damages exacted by the court order from the plaintiffs are to make amends for the hardships in case the interlocutory orders were improper. The hardships are a far cry from the destructions or irredeemable loss of the rights of the defendant to the shares standing in his name if he succeeds in the Court of Appeal In the circumstances I shall refuse to suspend the order of interlocutory injunction of the 17th July, 1987. The defendant's motions are dismissed accordingly. (Italics mine).

 

The defendant then applied to the Court of Appeal for an order suspending, pending the determination of his appeal the order of interlocutory injunction of O. Thomas, J., against him in the Court of Appeal. That court, coram Mohammed, J.C.A., Akpata, J.C.A. (as he then was) and Awogu, J.C.A. as per the lead judgment of Akpata, J.C.A. (as he then was) of 10/12/ 87 in which the other learned Justices of the Court of Appeal concurred, refused the application.

 

The defendant's appeal from the ruling of O. Thomas, J., of 17/7/87 granting the plaintiff's application for an interlocutory injunction eventually A came on for hearing in the Court of Appeal, Lagos Division. That court coram Akpata J.C.A. (as he then was), Awogu and Kalgo JJ.C.A. in its decision of 17-7-89 by a majority of two to one allowed the defendant's appeal in part and varied the order of interlocutory injunction as follows as per the lead judgment of Kalgo, J.C.A., in which Awogu J.C.A. concurred and Akpata, J.C.A. (as he then was) dissenting. As per Kalgo, J.C.A., first:

 

Therefore from the facts disclosed in the affidavit of the parties before the court, there is no doubt that there is a serious question to be tried and that the respondent's action is not frivolous or vexatious. This disposes of grounds 1 and 2 of the grounds of appeal.

 

second:   In the case of the instant appeal, the trial court can only look at the whole case to decide on whether to grant an injunction or not as Lord Denning said in Hubbard case (supra). The trial Judge cannot in this case look at the parties' pleadings and proceed to find that the appellant was a trustee of the shares in question which is one of the important issues to be determined at the trial. This D means in effect that the trial court must confine himself in the circumstances of this appeal to the evidence disclosed in the affidavit of parties. Pleadings are not evidence on oath and should be disregarded in this consideration.

 

third:     It is pertinent to observe that there are no averments in the affidavit in support complaining about the exercise of the ownership rights on the shares by the appellant at any time. In my view having regard to the nature of this case, the issue of the exercise of ownership rights over the shares in question must be treated separately and distinctly from the possibility of selling or otherwise alienating those shares. It would appear from the affidavit in support that the respondent was only concerned about selling or otherwise alienating the shares in dispute. I therefore agree with Chief Ajayi that since the respondent did not make any case for interfering with the ownership rights of the appellant over the shares, the trial court by making the order as per the terms of the prayers of the respondent's motion has given him more than he was entitled to, which was wrong in law. A court is not a charitable institution and a party must prove his case to be entitled to the judgment of the court. Ekpenyong v. Nyong (1975) 2 S.C. 71 (Italics mine).

 

fourth:   All those authorities clearly indicated that interlocutory injunctions are generally made to preserve the res or maintain the status quo ante pending the determination of the parties' rights by trial.

 

and finally:  On the whole, there was no evidence before trial court in the affidavit in support of the application for interlocutory injunction to justify making an order depriving the appellant of the rights to exercise his ownership right on the shares in dispute, which rights he has exercised for 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.

 

I must here refer too to the following passages in the dissenting judgment of Akpata J.C.A. (as he then was).

 

First:   The application of the plaintiff was for an injunction restraining the defendant from exercising any of the rights attaching to the relevant shares covered by specified share certificates pending the final determination of the action. All that the plaintiff’s required to show in the affidavit is that there is a dispute in respect of the shares. This is fully projected by paragraphs 3 and 4 of the affidavit in respect of the application which I have already reproduced."

 

Second:     In my view, it was not necessary for the plaintiff to specifically depose to the fact that the defendant would endeavour to sell or otherwise alienate the said shares." It was deposed to no doubt out of caution because that is a right which when exercised would destroy the "res" and render nugatory the judgment of the court should the plaintiff succeed in his action. The learned trial Judge rightly took judicial notice of the rights attaching to the shares and rightly restrained the defendants as prayed by the plaintiff even though the only fears expressed in the affidavit in support of the application were that the defendant might not be able to make monetary compensation for the value of the shares and that he might take steps to sell or otherwise alienate the said shares.

 

third:   Assuming that the affidavit is deficient, which is not the case, in an application of this nature the court must not disregard all inherent matters and circumstances disclosed in the pleadings and restrict itself only to facts deposed to in the affidavit in support of the application.

 

fourth:  By Section 18(1) of the High Court Law of Lagos State, the High Court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do. In the circumstances of this case I can see no fairer order that could have been made. It was to ensure that neither party had advantage over the other in respect of the shares until the question of ownership was determined.

 

In my view, the order meets the demands of justice shorn of legal peccadilloes." (Italics mine).

 

The plaintiff for his part was not satisfied with that decision and has appealed against it to this court. Pending the determination of the appeal the plaintiff appealed to the lower court by way of motion on notice for:-

 

(i)     Subject to the Plaintiff giving an undertaking as to damages, the Defendant whether by himself, his servants or agents or howsoever otherwise shall be restrained by interim injunction from exercising any of the rights attaching to the 2,333,000 N1.00 shares in the Societe Generale Bank (Nigeria) Limited covered by Share Certificates Numbers 000003,000006, 000011, 000018, 000022, 000024 and 000026 and the 3,453,100 N1.00 shares in the said Company covered by Shares Certificates Number 000053, 000054, 000055 and 000056 pending the appeal filed by the Plaintiff herein to the Supreme Court;

 

(ii)   such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.

 

That court, coram Akpata, J.C.A. (as he then was), Awogu, and Kalgo, JJ.C.A., again by a majority of 2 to 1 Akpata, J.C.A. (as he then was) dissenting refused the application holding as per the lead ruling of Awogu, J.C.A., in which Kalgo, J.C.A., concurred:-

 

I am of the firm view that the applicant has not made out a case for an interlocutory order suspending the judgment of this court dated 17th April 1989, pending the determination of the appeal.

 

Following the refusal of his application in the lower court, the plaintiff renewed it before us.

 

Arguments having been taken on this application ruling on it were reserved till 2/3/90. The ruling was not given. Before that date to wit on 8/2/90, as I have said earlier on in this judgment, counsel for the parties were recalled and were told that the ruling would not be given and instead the appeal itself would be heard on 2/3/90 by way of accelerated hearing. Thus it happened that the hearing of this appeal began on 2/3/90 and the application of the plaintiff of 20/6/89 for an interim injunction is in limbo.

 

I have given above the facts and circumstances surrounding the plaintiff's application for an interlocutory injunction and the decisions of the two courts below on it.

 

I should now set down the law governing such an application. The application was brought under Section 18 of the Lagos State High Court Law which gives the High Court Jurisdiction to grant, inter alia, an injunction by way of interlocutory order in all cases in which it appears to it to be just or convenient to do so. In Okoya v. Santilli (1990) 2 N.W.L.R. (Pt.131) 172 at 207 this court has interpreted the expression "just or convenient" to mean:-

 

Meaning of just or convenient. The words "just or convenient" H in the statutory provision (k) must be read "just, as well as convenient" (1). They do not mean that the Court can grant an injunction simply because the Court thinks it convenient, but mean that the Court should grant an injunction for protection of rights or the prevention of injury according to legal principles (m). They confer no arbitrary nor unregulated discretion on the Court, and do not authorise it to invent new modes of enforcing judgment his substitution for the ordinary modes. " (Italics mine).

 

It therefore behoves me to state the legal principles governing the consideration of an application for an interlocutory injunction.

 

First I refer to the following passage in the judgment of Ungoed Thomas, J., in Donmar Productions Ltd. v. Bart (1967) 2 All E.R. 339 and which has been cited with approval times without number in this court:

 

So in an application for the interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and subject to this being established, the governing consideration is the maintenance of the status quo pending the trial.

 

It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiff can be cured by payment of damages rather than by the granting of an injunction. Of course the burden of proof lies on the applicant throughout.'' (Italics mine).

 

See as instances Ladunni v. Kukoy,i & Ors. (1972) 1 All N.L.R. (Part 1) 133 and the recent decision of this court in Obeya Memorial Hospital v. A. G. Federation (I987) 3 N.W.L.R. (Pt.60) 325 at 339.

 

In the context of an application for an interlocutory injunction it is necessary to bear in mind the meaning of the expression "an irreparable injury" and when such an injury is established or not established as the case may be.

 

Volume 21 Halsbury’s Laws of England 3rd Edition page 352 paragraph 739 says as to the meaning of irreparable injury:-

 

By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury' which cannot possibly' be repaired; and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. (Italics mine).

 

And with particular reference to interlocutory injunction it says at paragraph 765 page 366 vis-a-vis irreparable injury:-

 

The plaintiff must also as a rule be able to show that an injunction until the hearing is necessary to protect him against irreparable injury; mere inconvenience is not enough. (Italics mine).

 

I will also refer to the Canadian case of Spooner Oils Ltd. & Spooner v. Turner Valley Gas Conservation Board & A.G. for Alberta (No.2) (1932) 2 W.W.R. 641, per MacGillvray. J.A. at pp.646, 648, and 649:-

 

Have the plaintiffs established that they will suffer irreparable injury' in the event of the injunction prayed for not being granted? The 'irreparable injury' must be material and one, which cannot be adequately remedied by, damages.... In 17 Halsbury's Laws fl8 (see now 21 Halsbury's Laws (3rd Edn.) 352), the following appears under the heading, 'Irreparable injury': 'The plaintiff must also as a rule be able to show that an injunction until the hearing is necessary to protect him against irreparable injury; mere inconvenience is not enough. By the term "irreparable injury" is meant, substantially, injury, which could never be adequately remedied or atoned for by damages'.... In the affidavit of A. G. Spooner (the plaintiff), it is stated 'that if the order of the board is carried into effect the plain tiff will suffer irreparable injury by the cutting down of its production and the consequent loss of revenue and in my opinion will not be able to continue in business'. It is to be noticed that, while the words 'irreparable injury' are used, they mean nothing more in the setting in which they are used than that there will be a loss in production and revenue which the company's financial position is unable to support.... It seems to me that the plaintiffs must fail on the ground of having failed to establish 'irreparable injury, in the sense in which these words are judicially used. " (Italics mine).

 

I will also refer to the following passage in Halsbury's Laws of England, 3rd Edition Volume 21 page 369 article 773 on the extent of restraint to be granted when a court is dealing with an interlocutory application for an injunction:-

 

In dealing with an interlocutory application, the Court will confine itself strictly to the point which it is called upon to decide, and will express its opinion on the case only so far as is necessary to show the grounds upon which the interlocutory application is disposed of, and, in the absence of very special circumstances, will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing. (Italics mine).

 

And finally I must remind myself that the present appeal is in essence one against the exercise of a discretion by the lower court. So it is necessary to bear in mind the principles governing the consideration of such an appeal. In this regard I refer to the case of Hadmor Productions Ltd. v. Hamilton (1983) A.C. 191 at 220 cited to us by Counsel for the plaintiff. At page 220 it was held:-

 

the proper role of a Court of Appeal in a matter of this sort is not to interfere with the decision of the trial court -

 

merely upon the ground that the appellate court would have exercised the discretion differently.

 

It should interfere only on one of the following grounds -

 

(i)     that it was based upon a misunderstanding of the law or of the evidence;

 

(ii)    that further evidence before the appeal court shows that some inference that particular facts exist or did not exist were erroneously made by the court of trial on the evidence then available to it; and

 

(iii)   that since the making of the order there has been a change of circumstances.

 

Having stated the Law relevant to the facts and circumstances of this appeal I can now go on to consider the plaintiffs appeal.

 

According to counsel for the plaintiff the issues for determination in this appeal are:-

 

(i)     Whether the decision of the court below is one which a tribunal, properly instructed as to the law applicable to the facts and circumstances of a case of this sort can reasonably arrive at.

 

(ii)    Whether the court below acted correctly in deciding to set aside the decision of the High Court on the ground that the order of injunction granted by that court "reversed" the status quo and did not "maintain it."

 

It is submitted on behalf of the plaintiff by his counsel Chief F.R.A. Williams, S.A.N., that the facts and circumstances of that case include the pleadings in the case and that Kalgo, J.C.A., was wrong to have held otherwise. I am satisfied that this submission is well founded. Whether the contrary view expressed by Kalgo, J.C.A., has occasioned a miscarriage of justice in this case is another matter which I will consider presently in this judgment.

 

On the scope of the injunction granted by the trial court and which the Court of Appeal curtailed, it is submitted by counsel for the appellant as follows:-

 

In practical terms, what the Court of Appeal did to the order of injunction made by the High Court was to curtail its scope as already indicated thereby enabling the defendant to continue to exercise the voting rights attaching to the disputed shares. It is submitted that on the material before the learned trial Judge, it was obvious to him that the plaintiff was claiming beneficial ownership of the shares registered in the name of the defendant. Having provided the money for the acquisition of the said shares, there is a resulting trust in favour of the plaintiff. The law regarding the voting powers of a trustee of shares is not in doubt. The authors of PALMER'S COMPANY PRECEDENTS 17th Edn. P.499 state that -

 

the trustees of a trust vote as all the beneficiaries, being sui juris, may direct.

 

In Kirby v. Wilkins (1929) 2 Ch. at 444 at p.454. Romer. J. (as he then was) declared:

 

Where a shareholder holds shares as a hare trustee for a third person, he is no doubt obliged to exercise his voting power in the way that the cestui - que trust desires ….

 

See also Butt v. Kelson (1952) Ch. 197 per Romer, L.J., at 207. In any event, in the light of the plaintiff's claim in the action there can be no doubt that he is entitled at any time to terminate the trust, put an end to it and discharge the defendant as trustee. See Halsbury's Laws Of England, 4th Ed. Vol.48 para. 637 p.355. In all the circumstances, it is submitted that the scope of the injunction claimed by the Plain tiff in his application for interlocutory injunction was in order and the decision of the High Court should have been upheld by the court below

 

As regards the decision of the Court of Appeal to maintain the status quo in respect of the voting rights at hand attached to the disputed shares, it is submitted for the plaintiff as follows: -

 

In holding as aforementioned both the learned Justices over-looked the fact that the one of the issues for trial was whether (as claimed by the plaintiff) the ownership rights exercised by the defendant were exercised by him as trustee i.e. on the direction of or according to the wishes and for the benefit of the plaintiff or at his own will and for his own benefit without any consultation whatsoever with the plaintiff.

 

It is submitted on behalf of the respondent by his counsel, Chief Ajayi, S.A.N., that there is no argument in the appellant's brief of arguments to the effect that the Court of Appeal should have dismissed the defendant's appeal in that court because of the reasons it gave when it refused the Defendant's application to suspend the injunction pending appeal.

 

I think Chief Ajayi's submission in this regard is well founded. Order 6 rule 8(5) of the 1985 Rules provides thus:-

 

Save with leave of the Court, no oral argument will be heard in support of any argument not raised in the Brief or on behalf of any party for whom no Brief has been filed.

 

No leave was sought by the plaintiff to present oral argument in support of an argument not raised in the plaintiff’s brief of argument. And no such leave was granted by this court. And in fact no such oral argument was presented to us by counsel for the plaintiff, Chief Williams, S.A.N.

 

The only other argument presented in the respondent's brief by his counsel, Chief Ajayi, S.A.N., is as follows:-

 

The Appellant has not challenged on this appeal, the determination of the Court of Appeal Awogu & Kalgo, JJ.C.A., that the affidavit in support of the application for stay of proceedings does not provide sufficient material upon which the order for stay could have been made.

 

The determination therefore remains unchallenged. The Respondent contends that even if the appellant were to succeed on the grounds filed the appeal would still fail because a ground upon which the decision of the Court of Appeal was given remains unchallenged. See Odiase & Anor. v. Agho & Ors. (1972) 1 All N.L.R. (Part I) 170

 

I am afraid I do not agree with Chief Ajayi, S.A.N., that the appellant in this appeal does not question the very basis upon the lower court allowed in part the respondent’s appeal to it namely, that there was no material upon which the injunction in the terms it was granted by the trial court could be based. I have earlier on in this judgment held that grounds 1 and 2 of the appellant's grounds of appeal postulate that the facts and circumstances of this H case were such that the lower court properly instructed as to the relevant law applicable to them could not have come to the determination now under appeal. It follows therefore in my judgment that those grounds of appeal question the very basis of the decision of that court, namely lack of material upon which the order of the interlocutory order of Thomas, J., at the trial court was based.

 

I have just said that the above is the only other ground upon which the respondent in his brief of argument filed by his counsel resisted the appellant's appeal on the merits. In my judgment the contention is unfounded. This, in my judgment, does not mean that the appeal must therefore succeed. Having regard to Order 6 rule 8(4) already quoted above the only penalty the respondent or his counsel will suffer in the circumstances is that he will not be allowed to present oral arguments on other points save with the leave of this court. This court is still in duty bound to consider the arguments of the appellant on his appeal and then decide if the appeal has merit or not. After all in a situation where an appellant files his brief of arguments and the respondent files no brief at all in reply, the appellant still has to argue his appeal and win or lose depending on the merit or demerit of his appeal as the case may be.

 

I have already stated the issues for determination in this appeal according to counsel for the appellant and his arguments in respect of them. I have also dealt in part with the submission that it was wrong of Kalgo, J.C.A., to have held that the trial court should not have had regard to the pleadings in this case whilst considering the interlocutory application. It now remains for me to consider the rest of the appellant's argument.

 

I go now to the consideration of the arguments of counsel for the appellant on the scope of the injunction granted by the trial Judge and which, according to counsel, the Court of Appeal wrongly curtailed.

 

Before I proceed it is necessary for me to remind myself that the Court of Appeal sitting, as it were, in an appellate jurisdiction over the decision of the trial court in the exercise of its discretion, must be guided by the decision in Hadmor Production Ltd. v. Hamilton (supra).

 

The passage from Halsbury's Laws of England 3rd Edition Volume 21 which I have quoted earlier on in this judgment shows that in the absence of very special circumstances (none are alleged in the instant case) the court in dealing with an interlocutory application will only impose such restraint as will suffice to stop the mischief complained of and keep things as they are until hearing. If the trial court imposes more restraint by an order of interlocutory than will suffice to stop the mischief apprehended that in my view would be a wrongful exercise in law of the discretion vested in the trial court. The Court of Appeal could in my view then properly say that the trial court was under a misunderstanding of the law in this regard and the court of Appeal can thereby interfere with the interlocutory order of injunction by cutting it down to its proper size having regard to the mischief apprehended and established before the trial court.

 

I am therefore satisfied that the Court of Appeal had the power to reduce the scope of the injunction granted by the trial court provided there was justification for such a course of action. So the question that now arises is this was the Court of Appeal justified in reducing the scope of the interlocutory injunction? This question in my view resolves itself into the following. On the facts and circumstances of this case and having regard to the relevant law is the appellant entitled to an interlocutory order of injunction in the terms of his application as granted by the trial Judge namely, an order of injunction A restraining the respondent by himself agent or servant from exercising any of the rights attached to the disputed shares or to the interlocutory order of in-junction granted by Court of Appeal restraining the respondent only from selling, pledging, mortgaging or otherwise alienating the disputed shares, leaving the voting rights of the respondent in respect of the shares unaffected by the injunction.

 

Both the trial court and the Court of Appeal found that there is no doubt there is a serious question to be tried in this case and that the appellant's action is not frivolous or vexatious. This issue has not been reopened before us.

 

I have said earlier on in this judgment on clear authorities that where the court interferes by way of injunction to prevent an injury it does so, on the ground, inter alia, that the injury is irreparable. I have also said that the onus is on the person applying for the injunction to prove this. There is no gainsaying it that if the defendant were to sell or otherwise alienating the disputed shares pending the trial of the present action, the plaintiff would suffer an irreparable injury in respect of them if the injunction were withheld and he eventually succeed at the end of this case. So the interlocutory order of injunction restraining the defendant from selling or otherwise alienating the disputed shares pending trial is eminently proper. The defendant/respondent has not at any time challenged this viewpoint.

 

The vital question in this appeal is whether the plaintiff, granted the facts and circumstances of this case and having due regard to the relevant law, is also entitled to an interlocutory injunction restraining the defendant E from exercising the voting rights attached to the disputed shares as ordered by the trial court which order was struck down by the Court of Appeal.

 

The defendant/respondent to this appeal is the registered owner of the disputed shares in the register of shares of the Company in question, Societe Generale Bank Nig. Ltd. The case of the plaintiff, the present appellant, against the defendant on the plaintiff's statement of claim is as follows:-

 

6.     At all times material to the investment of funds in the Bank, the defendant had no surplus earnings or loan facilities to enable him make any investment and the understanding between the parties was that the plaintiff alone would fund the investment. It was in the contemplation of both parties that the investment would assist the plaintiff in his efforts to continue giving financial assistance to the defendant. The plaintiff also intended that, depending on the level of dividends, he would donate a reasonable percentage of the shares to the defendant and sell the remainder to other Nigerian shareholders.

 

7.

(1)    Acting on the advice of the defendant who is a lawyer by profession, an account was opened in the United Bank for Africa Ltd. in the joint names of both parties.

 

(2)   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

 

(ii)    Defendant's properties at Plot 28, Block T. G.R.A. Ikeja, 18 Jalupon Close, Surulere and 13 Olufemi Street, Surulere and House and land at Ibara, Abeokuta. The properties used by the defendant as security were purchased by him with substantial cash donations from the plaintiff.

 

8.     All moneys paid into the aforesaid joint account in the United Bank for Africa were paid in from moneys belonging exclusively and beneficially to the plaintiff.

 

9.     It was from the said joint account that payment was made for the 270,000 shares issued by the Bank in the name of the defendant on 7/1/77.

 

10.    Following increases in the share capital of the Bank the need arose for the Nigerian shareholders (then comprising only the plaintiff and the defendant) to pay up sums totalling N4 million to make up their 60% interest in the share capital. The Nigerian Enterprises Promotion Board threatened that unless the said sums were paid, the premises of the Bank would he sealed up.

 

11.    The defendant quickly advised the plaintiff (who was then in detention) about the danger facing the Bank and stated that in order to meet the situation he has decided to sell off some of the shares of the plaintiff as well as the shares of the defendant held in the name of the defendant and which he well knew were held by him in trust for the plaintiff. The defendant had in fact agreed with intending purchasers to sell the said shares and had (according to him) collected 3.1 million from such purchasers.

 

12.    The plaintiff instructed the defendant that he must not sell more than 850,000 shares and that he (plaintiff) has procured a German business man (Mr. Klaus Semuth) who has agreed to make a sum of four million Naira (N4m) available to him (plaintiff) through his business agents. The plaintiff in fact made the said sum available to the defendant and it was paid into his (defendant's) personal Bank account in SGBN.

 

13.    As a result of the use of the money made available to the defendant by the plaintiff through the business agents of Mr. Klaus Semuth the defendant was able to pay for (a) the 499,200 shares covered by Certificate No.000024 in the defendant's name (b) the 460,800 shares covered by Certificate No.000026 in the defendant's name (c) 1,164,800 shares covered by Certificate No.00025 in the name of the plaintiff's wife Mrs. F.M. Saraki and (d) 1,075,200 shares covered by Certificate No.000027 in the name of the plaintiff's wife. The balance of N800,000 out of the said sum of four million Naira (N4m) was disbursed by the defendant according to the orders of the plaintiff leaving a sum of N70,000 still with the defendant.

 

14.    On 13.12.84 and 31.12.84 the Bank declared bonus shares, which resulted in a total of 1,885,660 shares being issued in the name of the defendant, but the particulars of the relevant certificates are unknown to the plaintiff.

 

15.    At all times material to this action the defendant was fully aware that the plaintiff was the beneficial owner of the shares standing in his (defendant's) name and that he was obliged to deal with the shares for the benefit and in accordance with the direction of the plaintiff. It was only recently when (for reasons best known to him) the defendant has turned round to deny the trust.

 

I have to copy in detail from the statement of claim of the plaintiff because I have held above that Kalgo, J.C.A., was wrong in saying that this document is irrelevant to the application for interlocutory injunction now on appeal. So one must look into it in order to discover whether this misdirection of Kalgo's, J.C.A., has occasioned or could have occasioned a miscarriage of justice in this case.

 

On the point of irreparable damage I am now discussing the only relevant portions of the affidavit of the plaintiff Dr. Sola Saraki are:-

 

5.     I am fully aware from my intimate knowledge of the defendant that, in the event my claims against him succeed, if he is permitted to part with possession of the shares, he will not be in a position to make monetary compensation to me for the value of the said shares.

 

6.     I do verily believe that unless restrained by Order of Court, the defendant will endeavour to sell otherwise alienate the said shares thereby making any judgment I may obtain against him nugatory.

 

Before I go on I must pause to observe that I do not agree to the following proposition in the dissenting judgment of Akpata, J.C.A. (as he then was):-

 

The application of the plaintiff was for an injunction restraining the defendant from exercising any of the rights attaching to the relevant shares covered by specified share certificates pending the final determination of the action. All that the plaintiff is required to show in the affidavit is that there is a dispute in respect of the shares. This is fully projected by paragraphs 3 and 4 of the affidavit in respect of the application which I have already reproduced.

 

A very careful reading of the authorities dealing with an interlocutory application for an injunction to which I have referred in this judgment leave me in no doubt that the applicant must establish not only the fact that there is a serious dispute to be tried but also the fact that the injury apprehended is 6 irreparable. In fact as regards the latter, the cases establish it that, it is not enough for the applicant to show that he will suffer some damage and that nothing short of evidence establishing irreparable damage in the sense I have described it earlier on in this judgment will do or suffice.

 

Again I cannot agree to the following passage in the judgment of Akpata, J.C.A. (as he then was:-

 

The learned trial Judge rightly took judicial notice of the rights attaching to the shares and rightly restrained the defendant as prayed by the plaintiff even though the only fears expressed in the affidavit in support of the application were that the defendant might not be able to make monetary compensation for the value of the shares and that he might take steps to sell or otherwise alienate the said shares.

 

Matters of which a court can take judicial notice are not at large. Such matters are clearly defined by statute law and case law. Section 73(1) of the Evidence Act tells us the facts of which a court can take judicial notice.

 

Talking about Judicial Notice, Phipson on Evidence 12th edition says at paragraph 10 at pages 4 - 5:-

 

Judicial notice is the cognisance taken by the court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary. (Stephen, in the first two editions of the Digest, described these as "facts which need not be proved," but in later editions calls them "facts proved otherwise than by evidence.") Apart from presumptions and matters of which the court can take judicial notice, all questions of fact must be decided on evidence, and the evidence must be given in open court or in such a way that the parties can deal with it .......

 

Perhaps it may be said that a court may take judicial notice of the fact that ownership of certain shares carries with it the right to vote at a Company's meeting. I say perhaps because it is well known that ownership of a certain class of shares does not carry with it the right to vote at a company's meeting. Take for instance ownership of preference shares. The better view appears to me to be that in the instant case it is common ground that the ownership of the disputed shares carries with it the right to vote at meetings of the members of the Company.

 

In the case in hand, as pleaded by the plaintiff and on the authority of Kirby V. Wilkins (1929) 2 Ch. 444 at 454 the defendant who according to the plaintiff holds the disputed shares in trust, for him holds the voting power in respect of the shares, subject to the obligation on him to exercise the power in accordance with the discretion of the plaintiff; the cestui-que trust. This is in fact not a matter of which judicial notice is taken. It is a matter of legal proposition.

 

What, as I see it, the plaintiff did not say in his affidavit in support of his application for an interlocutory injunction is that he has any fears that if the defendant exercise his voting right in respect of the disputed shares contrary to his, plaintiff's direction in this regard, he the plaintiff, would suffer irreparable damage. As he did not express such fears, he did not say what, according to him, would constitute the irreparable damage for the court or Judge to decide whether it is so or not.

 

I cannot find anything in the statute law or in the case law permitting a court to take judicial notice of either or both of these matters. So, it will not, in my view, be right for the court dealing with the interlocutory application for an injunction to assume such fears in favour of the plaintiff and even to go a step further and assume that the attendant consequences of such fears are irreparable damage.

 

Both the majority judgment and the dissenting judgment are agreed that the only fears expressed by the plaintiff in his affidavit in support of his interlocutory application are in respect of the alienation of the disputed shares by the defendant. I entirely agree with them on the material in the matter in hand. There is no warrant in my view to extend those fears to the exercise by the defendant of voting rights in respect of the disputed shares. The plaintiff's statement of claim clearly does not give such a warrant. So in my judgment the misdirection of Kalgo, J.C.A., which shut out the plain-tiffs statement of claim in the consideration of the plaintiffs application has not and could not have occasioned a miscarriage of justice. The plaintiffs pleading does not say anything about injury or likelihood of injury to the plaintiff, if the defendant exercise his voting rights in respect of the disputed shares contrary to the directions of the plaintiff.

 

So in the circumstances of this case the plaintiffs statement of claim is not in my judgment a material fact. An appellate court will only interfere with the exercise of a trial court's exercise of its discretionary power when it acts under a misconception or misdirection as to a material fact. see Worbi v. Asamanyuah 14 W.A.C.A. 669 at 672.1 am also satisfied on the authority of in re Moulton Graham v. Moulton 22 T.L.R. 380 at p.384 that this court, as an appellate court is competent and indeed has the responsibility of making a decision as to whether or not the plaintiffs statement of claim is a material fact in the matter at hand.

The conclusion I reach therefore is that, granted the facts and circumstances of this case and properly instructed as to the relevant law applicable, the interlocutory injunction which can properly he granted in this case is one restraining tile defendant from alienation of the disputed shares which is the only source of injury the plaintiff complained of.

 

So, I am satisfied that the lower court in its majority judgment was right E in its conclusion that there was no evidence before the trial court to justify the making of an order depriving the respondent of his rights in respect of the voting rights attached to the disputed shares pending the trial of the case.

 

So if the matter rests with me, I will dismiss the plaintiffs/appellant's appeal with N500.00 costs to the defendant/respondent.

 

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