(2017) LPELR-43426(CA)

Transcription

1 LEAGUE MANAGEMENT CO. LTD & ANOR v. ABUBAKAR & ANOR CITATION: ADAMU JAURO UCHECHUKWU ONYEMENAM In the Court of Appeal In the Jos Judicial Division Holden at Jos ON FRIDAY, 7TH APRIL, 2017 Suit No: CA/J/231/2016 Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU Between 1. LEAGUE MANAGEMENT CO. LTD 2. NIGERIA FOOTBALL FEDERATION (aka Nigeria Football Association) And 1. MUSTAPHA ABUBAKAR (for himself and on behalf of Giwa Football Club Ltd of Jos) 2. PLATEAU UNITED FOOTBALL CLUB (for itself and on behalf of all the other Nineteen Football Clubs in Nigeria's Professional Football League except Giwa Football Club) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought and obtained before fresh point can be raised on appeal and the exception(s) thereof "In arguing the first issue for determination, Counsel to the Appellants predicated his assertion of lack of jurisdiction on the part of the lower Court to entertain the action of the first Respondent on three grounds; namely (i) lack of locus standi on the part of the first Respondent to commence the action; (ii) that the cause of action of the first Respondent is not one that can be entertained under the Fundamental Rights (Enforcement procedure) Rules 2009; and (iii) territorial jurisdiction. None of these three issues was canvassed or raised before the lower Court and none of them was pronounced upon by the lower Court in the Ruling appealed against. It is elementary that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. Any party on appeal is therefore only entitled to contest or support the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court -V S Steel (Nig.) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (pt 938) 1. Any attempt by either party to an appeal to raise and canvass arguments on points or issues that were not raised and/or canvassed before the lower Court will be deemed out of line and struck down by the appellate Court. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96 at 722 thus: "It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue." The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same - Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1 and Abdullahi Vs Bani (2014) 17 NWLR (pt 1435) 1. The only exception is where the issue is one on the substantive jurisdiction; this can be raised and taken at any stage of the proceedings in a matter and even on appeal for the first time - Cotecna International Ltd vs Ivory Merchant Bank Ltd (2006) 9 NWLR (Pt. 985) 275, Mozie Vs Mbamalu (2006) 15 NWLR (pt. 1003) 466 and Nigerian National Petroleum Corporation Vs Orhiowasele (2013) 13 NWLR (pt 1371) 211. The Supreme Court has stated and reiterated over the years that an issue of locus standi is not an issue of substantive jurisdiction that can be raised at any stage of the proceedings and that where a party seeks to contest the locus standi of a plaintiff or applicant to commence an action, he must first raise the point in his statement of defence or response to the claim before he can constitute it as an issue for determination in a matter. This is by reason of the provisions of the Rules of Court abolishing demurer, in this case Order II Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and Order 24 Rules 1, 2 and 3 of the High Court of Plateau State (Civil Procedure) Rules Lasisi Fadare & Ors Vs Attorney General, Oyo State (1982) 4 SC 1, Dada Vs Ogunsanya (1992) 3 NWLR (pt 232) 754, Disu Vs Ajilowura (2006) 14 NWLR (pt 1000) 783, Bakare Vs Ajose- Adeogun (2014) 6 NWLR (pt 1403) 320 at 353 C-D. The point was reiterated by this Court in Imade Vs Military Administrator; Edo State (2001) 6 NWLR (Pt 709) 478 and National Hospital, Abuja & Ors Vs National Commission for Colleges of Education & Ors (2014) 11 NWLR (Pt 1418) 309. Thus, the issue of locus standi cannot be raised in this Court for the first time as of right, and a party seeking to do so must at least seek for and obtain the leave of Court to do so - Forestry Research Institute of Nigeria Vs Gold (2007) 11 NWLR (Pt 1044) 1 at 16 and Ibrahim Vs Lawal (2015) 17 NWLR (Pt. 1489) 490 at The issues of cause of action not fitting into the pigeon hole of the Fundamental Rights (Enforcement Procedure) Rules 2009 and that of territorial jurisdiction are matters of procedural jurisdiction rather than substantive jurisdiction. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent in his response to the action, otherwise he will be deemed to have waived them and be foreclosed from raising it again, Kwaa Vs Kwakwa 3 WACA 176, Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Odu'a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Mobil Producing (Nig.) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (pt 798) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig.) Ltd. Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. The issues on cause of action and territorial jurisdiction are thus not also issues that the Appellants can seek to raise in this appeal for the first time without, at least, seeking for and obtaining the leave of Court to do so.?it may be argued that the points addressed above were raised by this Court suo motu and that this Court ought to have invited the parties to address the points before deciding them. As stated earlier, the jurisdiction of this Court is limited to resolving and determining issues that were canvassed before and/or pronounced upon by the lower Court in the judgment or ruling appealed against and fresh issues where they are raised on appeal with the leave of this Court. This Court lacks jurisdiction to entertain and resolves issues raised and canvassed by the parties otherwise - Odom Vs Peoples Democratic Party (2015) 6 NWLR (Pt 1456) 527, Ibrahim Vs Lawal (2015) 17 NWLR (Pt 1489) 490."Per ABIRU, J.C.A. (Pp. 8-14, Paras. D-C) - read in context

3 2. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Duty on a party to show that the exercise of discretion by a lower court was wrongly exercised "It must be stated from the onset that it is an established principle of law that an appellate Court will not ordinarily interfere with the exercise of discretion by a lower Court and that the appellate Court will only interfere where it is shown that the exercise of discretion by the lower Court was done arbitrarily, was wrongful and not predicated on any principle of law or was tainted with illegality or substantial irregularity or it is in the interest of justice to do so - Saliu vs Egeibon (1994) 3 NWLR (Pt. 348) 23, Dangote General Textiles Products Limited Vs Hascon Associates Nig. Ltd. (2013) 16 NWLR (Pt 1379) 60, Azubuike Vs Peoples Democratic Party (2014) 7 NWLR (Pt 1406) 292. The onus is on an appellant to satisfy an appellate Court that the lower Court did not exercise its discretion judicially and judiciously - Minister of Petroleum & Mineral Resources Vs Expo-Shipping Line (Nig) Ltd (2010) 12 NWLR (pt 1208) 261, MTN Nigeria Communication Ltd. Vs Gatap Trade and Investments Ltd. (2013) 4 NWLR (Pt1344) 276."Per ABIRU, J.C.A. (Pp , Paras. C-B) - read in context 3. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether an action founded on Fundamental Rights Enforcement Procedure Rules is subject to the other rules of Court "The sui generis attribute of matter commenced under the Fundamental Rights (Enforcement Procedure) Rules 2009 is that it is governed by specific and special Rules of Procedure, and it is not subject, except where the context so admits, to the Rules of Procedure governing other civil matters. It has nothing to do with the application of established principles of law to such a matter."per ABIRU, J.C.A. (P. 34, Paras. A-C) - read in context 4. COURT - RAISING ISSUE(S) SUO MOTU: Instance(s) where a court can raise issue(s) suo motu and determine it without hearing parties "...it is settled that an issue touching on the jurisdiction of the Court can be raised suo motu and resolved by the Court without calling the parties to address on it- Tiza vs Begha (2005) 15 NWLR (pt 949) 616, Moses Vs State (2006) 11 NWLR (pt 992) 458, Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (pt 1213) 106 at , Gbagbarigha Vs Toruemi (2012) LPELR-15535(SC), Omokuwajo Vs Federal Republic of Nigeria (2013) 9 NWLR (Pt. 1359) 300 at 332, Ominiyi Vs Alabi (2015) 6 NWLR (pt. 1456) 572 at "Per ABIRU, J.C.A. (P. 14, Paras. D-F) - read in context

4 5. EQUITABLE REMEDY - EX-PARTE INJUNCTION: Principles guiding court's discretion in the grant of an ex-parte order "The main attributes of an ex parte application for injunctive orders include that (i) it Can be made when there is a real urgency but not a self induced or self imposed Urgency; (ii) it cannot be granted pending the determination of the substantive action; (iii) it can be granted where the Court considered on a prima facie view that an otherwise irreparable damage may be done to the applicant before the application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party; (iv) although, it is made without notice to the other party, there must be a real impossibility of bringing the application for such injunction on notice and serving the other party, (v) the applicant must not be guilty of delay - Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, Oniah Vs Onyia (1989) 1 NWLR (99) 514, Igbinoba Vs Igbinoba (2003) 2 NWLR (Pt 803) 39, Central Bank of Nigeria Vs System Application Products Nigeria Ltd (2005) 3 NWLR (pt 911) 152. The grant of orders of injunction on an ex parte application is the exercise of an extraordinary jurisdiction which, though is not unconstitutional, should only be utilized in cases of real emergency or compelling urgency - Provisional Liquidator of Tapp Industries Limited Vs Tapp Industries Limited ( ) ALL NLR 253, Enekwe Vs International Merchant Bank (Nig.) Ltd. (2007) 1 MJSC 198. Thus, perhaps the most pivotal of the rules governing the grant of ex parte application for injunction is that it is only in matters of real and compelling urgency that it is applicable. Urgency is the necessary fulcrum upon which an ex-parte application for injunction tests and this fact has been stated and restated in several case law authorities. In Kotoye Vs Central Bank of Nigeria supra, the Supreme Court emphasized the need for real urgency to sustain an ex-parte application for injunction and Nnaepeka-Agu, JSC explained the meaning of real urgency at page 440 thus: "What is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. So, if an incident which forms the basis of an application occurred long enough for the applicant to have given due notice of the application to the other side if he had acted promptly but he delays so much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self-induced urgency, and not one of real urgency within the meaning of the law. This self-induced urgency will not warrant the granting of the application ex parte." The Supreme Court quoted with approval and relied on the explanation of Megarry, J (as he then was) of the principle of real urgency in ex parte applications for injunction in the case of Bates Vs Lord Hailsham of Marylebone (1972) 3 All ER 1019 at 1025 thus: "There are, of course, occasions when circumstances make an earlier application impossible. But here, the dates speak for themselves. The announcement by the Lord Chancellor of the proposal to abolish scale fees altogether was made over two and half months ago. The association's first circular was sent out at about the same time. The draft order was published nearly a month ago. Well over three weeks ago it was in the hands of Solicitors generally. Not until a week ago did the association send its submissions to the Committee, following them up with individual letters some five days ago. For nearly three weeks the association has known that the Committee was to meet today... On these facts counsel for the plaintiff did his best, but the material was intractable. An injunction is a serious matter and must be treated seriously. If there is a plaintiff who has known about a proposal for ten weeks in general terms and for nearly three weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight, he must have a most cogent explanation if he is to obtain his injunction on an ex-parte application made two and half hours before the meeting is due to begin. It is no answer to say, as counsel for the plaintiff sought to say, that the grant of an injunction will do the defendants no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiff's case are less than compelling. Ex-parte injunctions are for cases of real urgency, where there has been true impossibility of giving notice of motion." Adding to the elucidation of the principle of real urgency, Uwaifo, JCA (as he then was) stated in Okechukwu Vs Okechukwu (1989) 3 NWLR (Pt. 108) 234 at 245 thus: "Ex-parte injunctions are for cases of extreme urgency where there has been a true impossibility of giving notice of motion, and such an injunction will be refused, unless the applicant (i.e. the plaintiff) has an overwhelming case on the merits, on the ground that the delay in making the application has been insufficiently explained."per ABIRU, J.C.A. (Pp , Paras. C-E) - read in context

5 6. EQUITABLE REMEDY - EX-PARTE INJUNCTION: The position of the law as regards the grant of ex- parte injunction by courts "The orders of injunction in issue in this appeal were granted on an ex-parte application and it is settled law that the word "ex-parte" in relation to injunctions is properly used in contradistinction to the phrase "on notice" and both expressions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a non-permanent injunction may bring the application ex-parte, that is without notice to the other side, and by their nature injunctions granted on an ex-parte application can only be properly interim in nature - Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, 7Up Bottling Co. Limited vs Abiola & Sons Ltd (1995) 3 NWLR (pt 383) 257. Ex-parte orders of injunction are a genre of preservative orders - Oluwa Glass Company Ltd Vs Ehinlawo (1990) 7 NWLR (Pt 160) 29, Alexander Marine Management Vs Koda International Ltd (1998) LPELR-CA/L/362/96. It is elementary that every Court of record possesses an inherent jurisdiction to grant preservative orders, including orders of interim injunction on ex-parte applications - Kigo (Nig.) Ltd Vs Holman Brothers (Nig.) Ltd (1980) 5-7 SC 60 at 67, Makinde Vs Akinwale (1995) 6 NWLR (pt. 399) 1 at 8-9 H-A, Governor of Oyo State Vs Akinyemi (2003) 1, NWLR (Pt 800) 1 at 20 C-E, Akingbola Vs Chairman, Economic, and Financial Crimes Commission (2012) 9 NWLR (pt 1306) 475. In Addition to the inherent jurisdiction, and relevant to the present case, a Court handling a fundamental right enforcement matter is given additional jurisdiction under the provision of Order III Rules 3 and 4 of the Fundamental Right (Enforcement Procedure) Rules 2009, to grant orders of injunction on ex-parte applications, especially when the life and liberty of a citizen is involved.?it is trite that an ex-parte application for the grant of orders of injunction is an appeal to the discretionary jurisdiction of the Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations - Azuh Vs Union Bank of Nigeria Plc (2014) 11 NWLR (Pt. 1419) 580. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it - Bello Vs Yakubu (2008) 14 NWLR (pt. 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations - CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (pt 1109) 1. Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court's discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court's discretion - Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (pt. 1004) 1, SCOA (Nig.) Plc Vs Omatshola (2009) 11 NWLR (pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor - Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (pt.1) 143."Per ABIRU, J.C.A. (Pp , Paras. B-B) - read in context 7. EQUITABLE REMEDY - INTERLOCUTORY/INTERIM INJUNCTION: Meaning and nature of injunctions "...injunction is an equitable relief issued or granted by a Court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants and agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the claimant, and not such as can be adequately redressed by an action in law. It is a judicial process operating in personam and requiring the person to whom it is directed to do or refrain from doing particular thing - Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356. An order of injunction may be granted in the interim, in the interlocutory or in the perpetual. An interim or interlocutory injunction is an equitable remedy granted by the Court before the substantive question raised in the case is finally determined and its object is to keep matters in status quo while the matter is still pending - Orji Vs Zaria Industries Ltd (1992) All NLR 450."Per ABIRU, J.C.A. (Pp , Paras. B-B) - read in context

6 HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Plateau State in the Ruling delivered Honorable Justice I. I. Kurada in Suit No PLD/J 445M/2016 on the 21st of August, 2016 granting exparte orders of injunction in favour of the first Respondent and the Appellants. The first Respondent, as applicant, commenced the action in the lower Court against the Appellants and the third Respondent, as first to third respondent respectively, by an Originating Motion brought pursuant to the Fundamental Right (Enforcement Procedure) Rules of The first Respondent sought the following prayers: i. A declaration that the expulsion of Giwa Football Club of Jos from the Nigerian Professional Football League (NPFL) by the first and second Respondents jointly and severally without the said first and second Respondents convening a Commission to set and determine any case, complaint or charge against Giwa Football Club or in the alternative without any Commission (if any) convened by the first and second Respondents jointly and severally inviting Giwa Football Club to 1

7 appear before it and affording it the opportunity to defend itself against any case, complaint, charge or sanctions raised against it is an infringement of the rights of the said Giwa Football Club to fair hearing protected by Section 36 (1) and (2) (a) & (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended and is thus unconstitutional. ii. A mandatory order compelling the first and second Respondents jointly and severally to restore Giwa Football Club of Jos to the Nigeria Professional Football League. iii. A mandatory order compelling the first and second Respondents to reschedule all the Nigeria Professional Football League fixtures which Giwa Football Club of Jos did not play in consequence of the breach of its right to fair hearing and also resulting from its expulsion from the NFFL and to allow Giwa FC to play these fixtures. iv. A mandatory order compelling all the nineteen other Football Clubs involved in the NPFL (in this application represented by the third Respondent) to honour all the rescheduled fixtures of the NPFL involving Giwa Football Club. v. A mandatory order compelling the first and second 2

8 Respondents to direct the return of all the players of Giwa FC which they gave permission to sign for other Football Clubs as a result of the expulsion of Giwa FC from the NPFL. The application was supported by all the necessary Court processes. The first Respondent filed also a motion ex-parte praying for: i. An order of interim injunction restraining the Respondents jointly and severally from further organizing, scheduling or playing any or all matches and or fixtures in the Nigeria Professional Football League (NPFL) pending the hearing and determination of the origination motion for enforcement of Fundamental Rights which is pending before the Court. Or in the Alternative ii. An order of interim injunction restraining the Respondents jointly and severally from further excluding Giwa Football Club of Jos from participating in and playing matches in the Nigerian Professional Football League (NPFL) pending the hearing and determination of the origination motion for enforcement of Fundamental Rights which is pending before the Court. iii. An interim mandatory order compelling the Respondents jointly and severally to restore Giwa FC 3

9 to the NPFL pending the determination of the origination motion for enforcement of Fundamental Rights which is pending before the Court. iv. An interim mandatory order compelling the first and second Respondents jointly and severally to reschedule all the matches Giwa FC did not play as a result of its purported expulsion from the NPFL by the first Respondent pending the determination of the origination motion for enforcement of Fundamental Rights which is pending before the Court. v. An interim mandatory order compelling the first Respondent to direct and/or order the return of all the players of Giwa FC who left the club and registered for other football clubs as a result of its purported expulsion from the NPFL by the first Respondent pending the determination of the origination motion for enforcement of Fundamental Rights which is pending before the Court. The grounds of the ex-parte application were that the first Respondent is a Football Club duly registered to participate in the Nigeria Professional Football League (NPFL) and that sometime on or about the 20th of May, 2016, the first Appellant wrote a circular to all Football clubs in the 4

10 NPFL informing them that the first Respondent had been expelled from the NPFL and that all the matches or fixtures the first Respondent had already played and was yet to play have been cancelled and the first appellant gave permission to all the players of the first Respondent to register for other clubs and consequent to which some players of the first Respondent left the club and registered for other clubs. The first Respondent stated that twenty football clubs participate in the NPFL each year and that each club plays thirty eight games and the club with the highest cumulative points wins the league while the four clubs with the least cumulative points are relegated and that as at the date of the filing of the application each club had played thirty matches with only eight matches left to be played and that unless the requested orders are made, the NPFL for the 2015/2016 season would be concluded without Giwa FC and this would make the originating motion for enforcement of Fundamental Rights academic. The lower Court heard the motion ex parte on the 12th of August, 2016 and it granted the alternate prayers sought thereon. Upon being served with the 5

11 processes and the orders made by the Court, the Appellants filed a notice of appeal against the ex parte orders granted by the lower Court. The notice of appeal dated the 21st of August, 2016 was filed on the 23rd of August, 2016 and it contained eight grounds of appeal. It must be noted that the Appellants did not file a counter affidavit or any response to the substantive originating motion of the first Respondent for the enforcement of fundamental rights. The Appellants compiled the records of appeal and they filed a motion on notice before this Court on the 25th of August, 2016 praying for departure from the Rules to allow the appeal to be argued on the basis of the record of proceeding they compiled as well for stay of execution of the ex parte orders made by the lower Court and for stay of the proceedings in the lower Court pending the determination of the appeal. The records of appeal compiled by the Appellants were admitted by this Court and deemed properly compiled and transmitted on the 18th of January, Counsel to the Appellants also compiled and transmitted a supplementary record of appeal and this was deemed properly compiled and 6

12 transmitted on the 13th of March, In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 31st of January, 2017 on the 2nd of February, In response, Counsel to the first Respondent filed a brief of arguments dated the 16th of February, 2017 and Counsel to the Appellants filed a Reply brief of arguments dated the 2nd of March, 2017 on the 3rd of March, The second Respondent did not file a brief of arguments and it took no part in the appeal. At the hearing of the appeal, Counsel to the Appellants and Counsel to the first Respondent relied on and adopted the arguments contained in their respective briefs of arguments. Counsel to the Appellants distilled three issues for determination in this appeal and these were: i. Where the lower Court lacked jurisdiction to adjudicate over the substantive action, whether same Court can validly make interim or interlocutory orders within the same action. ii. Assuming without conceding that the lower Court has jurisdiction to entertain the claim, considering the nature of the reliefs sought by the 1st Respondent in the substantive motion, 7

13 whether the lower Court ought to grant the interim injunctive restorative orders of 12th of August,2016. iii. Whether from the set of facts presented by the 1st Respondent to the lower Court, the lower Court had any grounds, materials or facts to grant the ex-parte interim mandatory injunctive orders against the Appellants. On his part, Counsel to the first Respondent distilled two issues for determination in the appeal and these were: i. Whether the lower Court had jurisdiction to entertain the suit and make any orders on same. ii. Whether the lower Court was right to have made interim orders in the suit on the 12th of August, It is obvious that the issues for determination formulated by the parties are basically the same. In arguing the first issue for determination, Counsel to the Appellants predicated his assertion of lack of jurisdiction on the part of the lower Court to entertain the action of the first Respondent on three grounds; namely (i) lack of locus standi on the part of the first Respondent to commence the action; (ii) that the cause of action of the first Respondent is not one that can be entertained under the Fundamental 8

14 Rights (Enforcement procedure) Rules 2009; and (iii) territorial jurisdiction. None of these three issues was canvassed or raised before the lower Court and none of them was pronounced upon by the lower Court in the Ruling appealed against. It is elementary that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. Any party on appeal is therefore only entitled to contest or support the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court -V S Steel (Nig.) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (pt 938) 1. Any attempt by either party to an appeal to raise and canvass arguments on points or issues that were not raised and/or canvassed before the lower Court will be deemed out of line and struck down by the appellate Court. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96 at 122 thus: "It is trite law 9

15 that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue." The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same - Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1 and Abdullahi Vs Bani (2014) 17 NWLR (pt 1435) 1. The only exception is where the issue is one on the substantive jurisdiction; this can be raised and taken at any stage of the proceedings in a matter and even on appeal for the first time - Cotecna International Ltd vs Ivory Merchant Bank Ltd (2006) 9 NWLR (Pt. 985) 275, Mozie Vs Mbamalu (2006) 15 NWLR (pt. 1003) 466 and Nigerian National Petroleum Corporation Vs Orhiowasele (2013) 13 NWLR (pt 1371) 211. The Supreme Court has stated and reiterated over the 10

16 years that an issue of locus standi is not an issue of substantive jurisdiction that can be raised at any stage of the proceedings and that where a party seeks to contest the locus standi of a plaintiff or applicant to commence an action, he must first raise the point in his statement of defence or response to the claim before he can constitute it as an issue for determination in a matter. This is by reason of the provisions of the Rules of Court abolishing demurer, in this case Order II Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and Order 24 Rules 1, 2 and 3 of the High Court of Plateau State (Civil Procedure) Rules Lasisi Fadare & Ors Vs Attorney General, Oyo State (1982) 4 SC 1, Dada Vs Ogunsanya (1992) 3 NWLR (pt 232) 754, Disu Vs Ajilowura (2006) 14 NWLR (pt 1000) 783, Bakare Vs Ajose- Adeogun (2014) 6 NWLR (pt 1403) 320 at 353 C-D. The point was reiterated by this Court in Imade Vs Military Administrator; Edo State (2001) 6 NWLR (Pt 709) 478 and National Hospital, Abuja & Ors Vs National Commission for Colleges of Education & Ors (2014) 11 NWLR (Pt 1418) 309. Thus, the issue of locus standi cannot be raised in 11

17 this Court for the first time as of right, and a party seeking to do so must at least seek for and obtain the leave of Court to do so - Forestry Research Institute of Nigeria Vs Gold (2007) 11 NWLR (Pt 1044) 1 at 16 and Ibrahim Vs Lawal (2015) 17 NWLR (Pt. 1489) 490 at The issues of cause of action not fitting into the pigeon hole of the Fundamental Rights (Enforcement Procedure) Rules 2009 and that of territorial jurisdiction are matters of procedural jurisdiction rather than substantive jurisdiction. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of 12

18 it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent in his response to the action, otherwise he will be deemed to have waived them and be foreclosed from raising it again, Kwaa Vs Kwakwa 3 WACA 176, Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Odu'a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Mobil Producing (Nig.) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (pt 798) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig.) Ltd. Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. The issues on cause of action and territorial jurisdiction are thus not also issues that the Appellants can seek to raise in this appeal for the first time without, at least, seeking for and obtaining the leave of Court to do so. It may be argued that the points addressed above were raised 13

19 by this Court suo motu and that this Court ought to have invited the parties to address the points before deciding them. As stated earlier, the jurisdiction of this Court is limited to resolving and determining issues that were canvassed before and/or pronounced upon by the lower Court in the judgment or ruling appealed against and fresh issues where they are raised on appeal with the leave of this Court. This Court lacks jurisdiction to entertain and resolves issues raised and canvassed by the parties otherwise - Odom Vs Peoples Democratic Party (2015) 6 NWLR (Pt 1456) 527, Ibrahim Vs Lawal (2015) 17 NWLR (Pt 1489) 490. Now, it is settled that an issue touching on the jurisdiction of the Court can be raised suo motu and resolved by the Court without calling the parties to address on it- Tiza vs Begha (2005) 15 NWLR (pt 949) 616, Moses Vs State (2006) 11 NWLR (pt 992) 458, Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (pt 1213) 106 at , Gbagbarigha Vs Toruemi (2012) LPELR-15535(SC), Omokuwajo Vs Federal Republic of Nigeria (2013) 9 NWLR (Pt. 1359) 300 at 332, Ominiyi Vs Alabi (2015) 6 NWLR (pt. 1456) 572 at This Court 14

20 has no jurisdiction to entertain the first issue for determination raised by the parties in this appeal. The issue for determination is hereby struck out along with all the arguments canvassed thereon in briefs of arguments of the parties. Reading the records of appeal and the arguments contained in the brief of arguments of the parties on the valid issues in this appeal, it is the view of this Court that there is only one issue for determination in this appeal. It is: Whether, on the facts and circumstances presented before it, the lower Court properly exercised its discretion to entertain and grant the alternate prayers of injunction sought by the first Respondent on the motion ex-parte? This appeal will be resolved on this sole issue for determination and the arguments of Counsel in their respective briefs of arguments will be considered under the issue for determination. In arguing the issue for determination, Counsel reproduced the prayers sought by the first Respondent on the originating motion for the enforcement of fundamental rights and the prayers sought and granted on the ex-parte application for orders of injunction and stated that a 15

21 comparison of the two shows that the orders granted by the lower Court on the ex-parte application were the same as those sought on the originating Motion counsel stated that this offended the principle that a Court must not grant the substantive reliefs sought in a matter at the interlocutory stage and that though a Court was a liberty to make preservative orders, they must be such as to maintain the status quo and they should not amount to granting the substantive reliefs and he referred to the cases of Owner of MV Miami Maiden Vs The Nigerian Ports Authority (2011) LPELR-4811 and Tabiowo Vs Disu (2008) 7 NWLR (pt. 1087) 533. Counsel stated further that the first Respondent did not provide sufficient facts on the exparte application to sustain the orders of mandatory injunction granted by the lower Court and that Courts of law sparingly grant orders of mandatory injunction as the standard of proof is high and that there was no allegation in the affidavit in support of the application that the Appellants took steps to steal a match on the first Respondent and he referred to the cases of NDIC Vs SBN (2003) NWLR (Pt 801) 311 and Platinum Habib Bank Plc Vs Tari 16

22 International Ltd. (2008) LPELR Counsel stated that it was settled law that a Court of law would not grant an application ex-parte except in situations of real urgency and to prevent imminent danger and he referred to the cases of Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (pt. 98) 419, Okafor Vs Onedibe (2003) 9 NWLR (Pt. 825) 399 and, Groupe Danone Vs Voltic (Nig) Ltd (2008) All FWLR (pt 417) 51. Counsel referred to Order IV Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 that contains provisions enabling a Court to grant interim orders ex-parte in fundamental rights enforcement matters and stated that it is only where life or liberty of a person is involved that the power can be exercised and that there was no issue of life or liberty of a person in the present case. Counsel referred to the meaning of real urgency as enunciated in the case of Kotoye Vs Central Bank of Nigeria supra and also to the case of UTB Ltd Vs Dolmetsh Pharm. (Nig.) Ltd. (2007) ALL FWLR (Pt 385) 434 on what amounts to self-imposed urgency and stated that from the affidavit in support of the application, the dispute leading up to the matter occurred on 17

23 the 20th of May, 2016, but the first Respondent did not approach the lower Court until 11th of August, 2016, over ten weeks thereafter, and that this was a clear case of self imposed urgency and that the lower Court ought not to have exercised its discretion to grant the ex -parte application. Counsel urged the Court to find merit in the appeal and to allow same and set aside the ex-parte orders of injunction granted by the lower Court. In his response arguments, Counsel to the first Respondent stated that the Fundamental Rights Enforcement Procedure is sui generis and its procedure is distinct from the procedure of other civil matters and he referred to the provisions of Order IV Rules 3 and 4 of the Fundamental Right Enforcement Procedure Rules 2009, which he said gave the lower Court power to make ex-parte orders, and stated that the exercise of the power is not limited to circumstances where life or liberty of a person is involved. Counsel referred to the provisions of Order IV Rule 4(c)(iv) which he said empowered the lower Court to grant the orders of injunction made on the 12th of August, 2016 and he also referred to the prayers sought on the 18

24 ex-parte application and stated that the grant or refusal of an order of injunction, however described, falls within the realm of the discretion of the lower Court and he placed reliance on the case of Badru vs Olorunfemi (2006) All FWLR (pt. 324) Counsel stated that one of the factors for granting an order of injunction, including restorative and mandatory injunctions is the preservation of the res and that where the res of dispute is in peril, a Court has a discretion to preserve same even with restorative and mandatory orders and he referred to the case of Akinpelu Vs Adegbore (2008) ALL FWLR (pt. 429) 413. Counsel traversed through the application filed by the first Respondent and stated that it was shown that the res of the substantive suit was in immediate danger of being destroyed and that in granting the ex-parte application, the lower Court took into account the justice of the case and the need to preserve the res and he referred to the case of NACB Ltd Vs Ozoemelam (2005) AII FWLR (Pt 280) Counsel stated that it had been held in a number of cases that an appellant Court would not interfere with the exercise of discretion by a trial 19

25 Court unless where such discretion was not exercised judicially and judiciously and that the Appellants failed to show that orders granted occasioned or would work injustice against them and he referred to the case of Ugwu Vs Emenogba (2009) ALL FWLR (Pt. 499) 496. Counsel stated that the submission of the Counsel to the Appellants on the issue of the delay of about ten weeks in the commencement of the action from the date of the occurrence of the cause of dispute and the reliance placed on the case of Kotoye Vs CBN supra on the point are inapposite as Fundamental Rights Enforcement cases are sui generis and are not governed by the principles applicable in civil matters and that in matters of judicial discretion, no one case is authority for the other and he referred to the case of Ajuwa Vs SPDC (Nig) Ltd (2012) All FWLR (pt. 615) 200. Counsel stated that by the provisions of Order IV Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 delay in commencing an action was not fatal as the cases for fundamental rights enforcement u/ere not affected any limitation statute. Counsel concluded his arguments by urging this Court to find no 20

26 merit in the appeal and to dismiss same and uphold the interim orders of injunction made by the lower Court on the 12th of August, The fulcrum of this appeal is the ex parte orders of injunction made by the lower Court on the 12th of August, The prayers sought by the first Respondent on the ex parte application have been reproduced above and need no repetition here. In granting the orders, the lower Court stated in its Ruling thus: " This application has one main relief as contained on the face of the motion paper. It also has an alternative relief also contained on the face of the paper. This application is supported by 5 paragraph affidavit which has pleaded and annexed exhibits thereto marked as Exhibits 1-8 respectively. There is also the written address of Counsel in support of this application. I have carefully perused the averment in the supporting affidavit as well as the contents of the exhibits accompanying the affidavit. I have also gone through the written address of Counsel. Upon doing so, I hold the candid view that a serious triable issue has been disclosed to warrant the grant of this application. Based on the 21

27 facts and exhibits placed before me for consideration in this application, I am inclined to granting the alternative Prayer on the motion as per the reliefs contained in the alternative prayer pending the hearing of the motion on notice filed along with this application. Hearing of the motion on notice is hereby fixed on 23rd August, 2016." Now, injunction is an equitable relief issued or granted by a Court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants and agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the claimant, and not such as can be adequately redressed by an action in law. It is a judicial process operating in personam and requiring the person to whom it is directed to do or refrain from doing particular thing - Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356. An order of injunction may be granted in the interim, in the interlocutory or 22

28 in the perpetual. An interim or interlocutory injunction is an equitable remedy granted by the Court before the substantive question raised in the case is finally determined and its object is to keep matters in status quo while the matter is still pending - Orji Vs Zaria Industries Ltd (1992) All NLR 450. The orders of injunction in issue in this appeal were granted on an ex-parte application and it is settled law that the word "ex-parte" in relation to injunctions is properly used in contradistinction to the phrase "on notice" and both expressions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a nonpermanent injunction may bring the application ex-parte, that is without notice to the other side, and by their nature injunctions granted on an ex-parte application can only be properly interim in nature - Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, 7Up Bottling Co. Limited vs Abiola & Sons Ltd (1995) 3 NWLR (pt 383) 257. Ex-parte orders of injunction are a genre of preservative orders - Oluwa Glass Company Ltd Vs Ehinlawo (1990) 7 NWLR 23

29 (Pt 160) 29, Alexander Marine Management Vs Koda International Ltd (1998) LPELR-CA/L/362/96. It is elementary that every Court of record possesses an inherent jurisdiction to grant preservative orders, including orders of interim injunction on ex-parte applications - Kigo (Nig.) Ltd Vs Holman Brothers (Nig.) Ltd (1980) 5-7 SC 60 at 67, Makinde Vs Akinwale (1995) 6 NWLR (pt. 399) 1 at 8-9 H-A, Governor of Oyo State Vs Akinyemi (2003) 1, NWLR (Pt 800) 1 at 20 C-E, Akingbola Vs Chairman, Economic, and Financial Crimes Commission (2012) 9 NWLR (pt 1306) 475. In Addition to the inherent jurisdiction, and relevant to the present case, a Court handling a fundamental right enforcement matter is given additional jurisdiction under the provision of Order IV Rules 3 and 4 of the Fundamental Right (Enforcement Procedure) Rules 2009, to grant orders of injunction on ex-parte applications, especially when the life and liberty of a citizen is involved. It is trite that an ex-parte application for the grant of orders of injunction is an appeal to the discretionary jurisdiction of the Court. It is trite that when a Court is called upon to exercise its discretion in favour 24

30 of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations - Azuh Vs Union Bank of Nigeria Plc (2014) 11 NWLR (Pt. 1419) 580. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it - Bello Vs Yakubu (2008) 14 NWLR (pt. 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations - CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (pt 1109) 1. Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court's discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court's discretion - Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (pt. 1004) 1, SCOA (Nig.) Plc Vs Omatshola (2009) 11 NWLR (pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the 25

31 corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor - Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (pt.1) 143. The simple question calling for answer in this appeal therefore is - whether the first Respondent supplied sufficient materials on his ex-parte application to warrant the lower Court exercising its discretion to grant the prayers sought thereon? It must be stated from the onset that it is an established principle of law that an appellate Court will not ordinarily interfere with the exercise of discretion by a lower Court and that the appellate Court will only interfere where it is shown that the exercise of discretion by the lower Court was done arbitrarily, was wrongful and not predicated on any principle of law or was tainted with illegality or substantial irregularity or it is in the interest of justice to do so - Salu vs Egeibon (1994) 3 NWLR (Pt. 348) 23, Dangote General Textiles Products Limited Vs Hascon Associates Nig. Ltd. (2013) 16 NWLR (Pt 26