(2018) LPELR-45115(CA)

Transcription

1 DIELI & ANOR v. COMMISSIONER FOR ENVIRONMENT, SOLID MINERALS AND COOPERATIVES, ABIA STATE & ORS CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON FRIDAY, 2ND FEBRUARY, 2018 Suit No: CA/PH/240/2002 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ITA GEORGE MBABA TUNDE OYEBANJI AWOTOYE Between 1. AUGUSTINE NWACHINEMERE DIELI 2. FELIX EZENWA (For themselves and as representing members of the Timber/Forestry Association of Nigeria Ariaria Unit, Aba) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal And 1. COMMISSIONER FOR ENVIRONMENT, SOLID MINERALS AND COOPERATIVES, ABIA STATE. 2. NZE S.S. IFEANYI ANYANWU 3. LAWRENCE IKEKWE 4. UCHE AHIBE 5. GODWIN IGWEBUIKE 6. BENNETH AKPU 7. FELIX NWAWO 8. LIVINUS OKORO 9. LAWRENCE NWANKWO 10. GABRIEL OGWO 11. CHIEF B.O.N. AGU 12. ANTHONY ONWUEGBUSI 13. D.C. OKORO (Zonal Forestry Officer, Aba) - Appellant(s) - Respondent(s)

2 RATIO DECIDENDI 1. EQUITABLE REMEDY - INTERLOCUTORY/INTERIM INJUNCTIONS: Whether an interlocutory injunction can be granted against completed act(s) "From the deposition in paragraphs 3(e) and (f) of the Respondents' counter-affidavit the Respondents, though had been appointed caretaker committee members, yet they were still acting as such as at the time of the application at the lower Court hence the act was not a completed act. A completed act is the ultimate act beyond which no further action is necessary. Thus, an interlocutory injunction cannot be granted to restrain a completed act. See JOHN HOLTS NIGERIA LTD & ANOR v. HOLTS AFRICAN WORKERS UNION OF NIGERIA AND CAMEROUNS (1963) A.N.L.R In the case of JOHN HOLTS NIGERIA LTD (Supra) the appellants intended to carry out a reconstruction plan which the respondents viewed with concern and therefore instituted an action against the appellants at the trial Court seeking for a declaration and injunction. The plaintiffs/respondents later filed an application for interlocutory injunction to restrain the appellants from the construction plan. It was clear from the facts of the case that the Reconstruction Plan had already been introduced and implemented as at the time of the action. Ademola JSC (as he then was) in the leading judgment held thus: "The second aspect is the insistence of the learned Judge to continue the hearing of the application for interlocutory injunction when it was so obvious from the facts before him that the object for which the injunction was asked for, namely the introduction of a Reconstruction Plan to the defendant's company had already been effected and the plan had been introduced before the application for the interim injunction was filed. In other words, an interlocutory injunction was no more a remedy for an act which had already been carried out." Unlike in the case of JOHN HOLTS (Supra) the act sought to be restrained by the appellants as at the time of the action at the lower Court was not a completed act. I am therefore of the respectful view that the lower Court was wrong to have refused the application of the appellants on the ground that the act sought to be restrained was a completed act."per AWOTOYE, J.C.A. (Pp , Paras. A-F) - read in context

3 2. WORDS AND PHRASES - "STATUS QUO ANTE": Meaning of "status quo ante" "The contention of the appellants' counsel in this appeal is that what the appellants sought interlocutory injunction to restrain was not a completed act as at the time of the action at the lower Court. He submitted that an interlocutory injunction was sought to maintain the status quo ante bellum. What is status quo ante bellum? Wali JSC in FIRST ATLANTIC TRUST BANK LTD & ANOR v. BASIL O. EZEGBU & ORS (1993) 6 NWLR PT 297 P. 1 explained it thus: "In Blacks' Law Dictionary (5th Edition) the phrase status quo ante is defined thus in page 1264: 'The existing state of things at any given date quo ante bellum, the state of things before the war'. 'Status quo' to be preserved by a preliminary injunction is the last actual peaceable, uncontested status which preceded the pending controversy. Edgewater Construction Co. Inc. v. Percy Wilson Mortgage & Finance Coops Dei 864, 357 N.E. 2d " In a later case, AYORINDE v. A-G & C.J OYO STATE & ORS (1996) 3 NWLR (Pt 434) p. 20, Iguh JSC explained it further thus: "Status quo means 'the position prevailing when the defendant embarked upon the activity sought to be restrained'. See FOWLER v. FISHER (1976) QB 122 at 141B per Sir John Pennycuick" What status quo ante bellum is subjective and turns on what is being sought to be restrained in a given case."per AWOTOYE, J.C.A. (Pp , Paras. D-E) - read in context

4 TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):This is the judgment in respect of the appeal filed by the plaintiffs/applicants/appellants vide their Notice of Appeal filed on 23/5/2002. It is an appeal against the decision of High Court of Abia State; Aba delivered on 22/5/2002. The decision was the ruling of the lower Court in respect of the Motion on Notice filed by the appellants praying for: An order of interlocutory injunction restraining the first defendant/respondent by himself or by his agents from appointing or further appointing a caretaker committee of the Timber/Forestry Association of Nigeria and the 2nd to the 13th defendant/respondents from acting or further acting as members of the caretaker committee of the Timber/Forestry Association of Nigeria, Ariaria Unit, Aba, until the determination of the substantive suit. The lower Court after hearing the parties ordered: 1. That the Plaintiffs/applicants application for an Order of interlocutory injunction against the defendants/respondents is unmeritorious. It fails. It is refused and hereby dismissed accordingly. 1

5 2. That no cost is awarded in this application. Dissatisfied with the decision the appellants appealed and challenged the decision on two grounds, to wit: GROUND ONE The learned trial judge erred in law when he held that the action which the applicants/appellants prayed to restrain was a completed action. PARTICULARS OF ERROR: 1. The letter, Exhibit ACD 5, by which the 1st defendant/respondent dissolved the executive of the Association of Timber/Forestry Association of Nigeria, Ariaria Unit and appointed a Caretaker Committee ordered that the handing over by the applicants/appellants be completed on or before the 17th of December, 2001 and a copy of the handing over note forwarded to him latest 18th December, There was an affidavit evidence that the appellant did not hand over by the date ordered by the 1st defendant/respondent. 3. There was no evidence by the defendants/respondents that a copy of the hand over note was sent to the 1st defendant/respondent as requested by him. 4. There was evidence that on the strength of a petition written by the respondents Solicitor the Police of Zone 9 2

6 Command, Umuahia invited the appellants, and threatened to jail them if they failed to hand over. 5. There was evidence that the appellants refused to hand over pending the determination of the suit pending in the Court. GROUND TWO The learned trial judge misdirected himself as to the facts of the application when he failed to come to conclusion that the balance of convenience was in favor of the appellants. PARTICULARS OF ERROR: The affidavit evidence disclosed that the executive dissolved by the 1st defendant/respondent was elected based on the Constitution of the Association Exhibit ACD 3. After transmission of record of appeal to this Court, the appellants brief of argument was settled by Chief E.T.O. Njoku, appellants counsel. Chief Njoku postulated one sole issue for determination. The issue reads as follows: WHETHER BY THE TIME THE APPELLANTS BROUGHT THE APPLICATION FOR AN INTERLOCUTORY INJUNCTION THE HANDING OVER OF THE ADMINISTRATION OF THE ASSOCIATION BY THE APPELLANTS TO THE 2ND 13TH RESPONDENTS AS INSTRUCTED BY THE 1ST RESPONDENTS HAD BEEN COMPLETED.

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8 Learned counsel submitted that the learned trial Judge s reasons appeared to be that the letter ACD 5 per se completed the action. He referred to the averments in the affidavits and submitted that as at the time the appellants filed the action and the motion for application for interlocutory injunction, the 1st respondent had not completed the action as there had not been any handing over by the appellants Association to the 2nd 13th Respondents. He further contended that the non-handover of the administration of the appellants Association rendered the executive fiat incomplete. He added that the status quo ante bellum which ought to be maintained was the affairs that existed before the 1st defendant s dissolution of the appellants Association. He relied on AKAPO v HABEEB (1992) 6 NWLR (PT 247) 266 at 303. He finally submitted that the learned trial Judge erred when he refused to grant the prayer of the appellants on the ground that the action of the dissolution of the Association and the handing over of same to a caretaker Committee was a completed action. He urged the Court to resolve the sole issue in favour of the appellants. 4

9 The Respondents, inspite of having been served with necessary processes in this appeal, failed to file Respondents brief. This appeal is therefore being resolved based on appellants brief alone. I have carefully considered the submissions of learned counsel. The facts of this appeal can be captured from the averments in the affidavits before the lower Court. Paragraphs 3-18 of the affidavit in support of the appellants application and paragraph 3 of the counteraffidavit of the Respondents are very pertinent. Paragraph 3-18 of the supporting affidavit of the applicants read thus: That the Timber/Forestry Association of Nigeria, Ariaria Unit, Aba (hereinafter referred to as FAN) is a voluntary private association of the dealers in timber and allied forestry resources in the Ariaria International Market, Aba, formed in the interest of its members. That by practice FAN holds its election to appoint an executive to run its affairs every four years. That about the 4th day of May, 2000 FAN held its election to appoint a new executive whereby I emerged as the current Chairman of the executive. 5

10 That at the inception of FAN the Enyimba Sawmillers Cooperative Society Limited, Ariaria, as a group become members. That after the election the present Chairman of the Enyimba Sawmillers Cooperative Society Limited (ESCS) and other interested persons instigated the group to pull out from FAN. That the present chairman of ESCS at the time of the May election of FAN was the Chairman of FAN and contested the election for the post of Chairmanship and lost. That ESCS consequently applied to the Abia State Chapter for registration as an independent group, that is to say, independent of FAN. That FAN did not like the secession of ESCS for reasons stated in their letter to the Director of Forestry, letter dated 21st July, 2001, through its solicitor. I exhibit a copy of the letter marked Exhibit ACD 1. That in response to the aforesaid letter the Director wrote to FAN s solicitor emphasizing that ESCS as a body was free to exist as an independent body and has ipso facto registered with the State Forestry Association and the National Association. I exhibit a copy of the letter marked Exhibit ACD 2. I also exhibit 6

11 the Abia State Chapter constitution of Forestry Association of Nigeria marked Exhibit ACD 3. That before Exhibit ACD 2 the Director in the Ministry of Environment Solid Mineral and Cooperative had written a letter to me and the Chairman of ESCS appealing for peace between FAN Ariaria Unit and ESCS. I Exhibit a copy of the letter marked Exhibit ACD 4. That late in December, 20001, I received a letter dated 13th December, 2001 from Honourable Commissioner for Environment, Solid Mineral & Cooperatives, Umuahia dissolving the executive of FAN of which I am the Chairman and appointing the 2nd-13th defendants as a caretaker committee to run its affairs. I exhibit a copy of the letter marked Exhibit ACD 5. That FAN is not run by the government of Abia State or any Government of Nigeria. That FAN is not founded by the government of Abia State of Nigeria or of any Government of Nigeria. That the members of FAN and its executives are not in the employment of Abia State Government and not paid salaries or emoluments by the said government. That members of FAN like any other trader in Ariaria pay stallage fees for the stalls they occupy to the Aba 7

12 North Local Government. That FAN both at the Ariaria level and State level is a nongovernmental organization. Respondents counter-affidavit on the other hand states thus: That Emenike Okezie Esq. Counsel for the 1st and 13th Defendants/Respondents informed me and I verily believe him on the following facts: a. That the 1st Defendants/Respondents in his Capacity as the State Commissioner for Environment Solid Minerals and Cooperatives is in charge of all forestry matters in Abia State. b. That the 133th Defendant/Respondent as the zonal Forest Officer Aba zone, coordinates forestry matters in that zone and reports to the 1st defendant/respondent. c. That paragraph 3 of the applicant s affidavit is false. The Timber/Forestry Association of Nigeria is an association that is officially recognized by the Abia State Government through the office of the 1st defendant/respondent. In fact, the 1st defendant/respondent is the Grand Patron of the association in Abia State. d. That in September 2001 the Enyimba Sawmill Cooperative Society Ltd (ESCS) sent a strongly worded petition to the 1st Defendant/Respondent 8

13 dated 13th September 2001 in which they complained of attacks meted out to them by the Plaintiffs/Applicants. A copy of the said letter is hereby exhibited and marked Exhibit 1 e. That the 1st Defendant/Respondent ordered an investigation into the matter and on 4th December, 2001 the 13th Defendant/Respondent submitted his report to the 1st Defendant/Respondent. A copy of the said report is hereby exhibited and marked Exhibit 2. f. That based on the recommendations contained in Exhibit 2 the 1st Defendant/Respondent in exercise of his official responsibility as the State Commissioner for Environment Solid Minerals and Cooperatives and as the Grand Patron of the Forestry Association of Nigeria dissolved the Ariaria Unit of the Forestry Association of Nigeria (FAN) of which the Plaintiffs/Applicants are the executive members and appointed a caretaker Committee comprising of the 2nd-12th Defendants/Respondents. A copy of the dissolution letter is exhibited and marked Exhibit 3. g. That the 1st Defendant/Respondent in dissolving the executives of the Timber/Forestry Association of Nigeria acted to forestall the threat to the fragile 9

14 peace that now exists at the Ariaria International Market Aba and stop the anti-industrial activities carried out by the Plaintiffs/Applicants at the market. h. That paragraphs 14, 15, 16 and 18 of the applicant s affidavit are false. The government of Abia State through the office of the 1st Respondent has a controlling interest in the organization and running of all industrial unions that relate to environmental activities in all the major markets in the state. The Ariaria market unit of the Timber/Forestry Association of Nigeria is not an exception. i. That this application is most incompetent, ill motivated and an abuse of Court processes. The said application should be struck out. It is also necessary to reproduce the content of the letter of Government of Abia State of Nigeria with Ref. No MESC/AD/112/1/186 dated 13/12/2001 on the dissolution of Executive Committee of Timber/Forestry Association of Nigeria (FAN) Ariaria Unit hereunder for ease of reference: The Executive Chairman, Aba North Local Government Area, Eziama, Aba Sir, DISSOLUTION OF EXECUTIVE COMMITTEE OF 10

15 TIMBER/FORESTRY ASSOCIATION OF NIGERIA (FAN) ARIARIA UNIT LED BY MR. AUGUSTINE NWACHINEMERE DIELI AND APPOINTMENT OF A CARETAKER COMMITTEE TO BE LED BY NZE S.S.I. ANYANWU I wish to inform you that the Timber/Forestry Association of Nigeria, Ariaria Unit Executive led by Mr. Augustine Nwachinemere Dieli has been dissolved with immediate effect, as a result of his continued anti-forestry activities. These anti-fan activities include the following: flouting of directives from constituted authorities, security risk, made Abia State government loose substantial revenue to neighboring states, invading the territory of Enyimba Saw millers, thereby causing a breach of peace, created problems and forestalled the installation of electric poles to service the Sawmill areas of Ariaria International Market Aba. I am by this letter appointing the under listed persons to run the affairs of Timber/Forestry Association of Timber/Forestry Association of Nigeria, Ariaria Unit, until sanity returns before a formal election is conducted for them by the Abia State Forestry Association of Nigeria. Nze S.S. Ifeanyi Anyanwu -Chairman Mr. G.C. Nwauya -Vice Chairman 11

16 Mr Lawrence Ikwekwe -Secretary Mr Uche Ahibe - ASST. Secretary Mr Godwin U. Igwebuike -Financial Secretary Mr Benneth Akpu -Treasurer Mr Felix Nwawo -Provost Mr Livinus Okoro -Member Mr Lawrence Nwankwo -Member Mr Gabriel Ogwo - Member Chief B.O.N. Agu - Member Mr Anthony Onwuegbusi - Member The Zonal Forest Officer Aba - Member All handing over/taking over must be completed on or before 17th December, 2001 and a copy of the handing over note forwarded to me latest 18th December, Barr. Stanley Ojigbo Hon. Commissioner for Environment/ Grand Patron Abia State FAN The contention of the appellants counsel in this appeal is that what the appellants sought interlocutory injunction to restrain was not a completed act as at the time of the action at the lower Court. He submitted that an interlocutory injunction was sought to maintain the status quo ante bellum. What is status quo ante bellum? Wali JSC in FIRST ATLANTIC TRUST BANK LTD & ANOR v. BASIL O. EZEGBU & ORS (1993) 6 NWLR PT 297 P. 1 explained it thus: In Blacks Law Dictionary (5th Edition) the phrase

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18 status quo ante is defined thus in page 1264: The existing state of things at any given date quo ante bellum, the state of things before the war. Status quo to be preserved by a preliminary injunction is the last actual peaceable, uncontested status which preceded the pending controversy. Edgewater Construction Co. Inc. v. Percy Wilson Mortgage & Finance Coops Dei 864, 357 N.E. 2d In a later case, AYORINDE v. A-G & C.J OYO STATE & ORS (1996) 3 NWLR (Pt 434) p. 20, Iguh JSC explained it further thus: Status quo means the position prevailing when the defendant embarked upon the activity sought to be restrained. See FOWLER v. FISHER (1976) QB 122 at 141B per Sir John Pennycuick What status quo ante bellum is subjective and turns on what is being sought to be restrained in a given case. In this appeal, what the appellants seek to restrain are: (1) The first defendant/respondent by himself or by his agents from appointing or further appointing a caretaker committee of the Timber/Forestry Association of Nigeria (2) The 2nd-13th defendants/respondents from 13

19 acting or further acting as members of the caretaker committee of the Timber/Forestry Association of Nigeria, Ariaria Unit, Aba. From the deposition in paragraphs 3(e) and (f) of the Respondents counter-affidavit the Respondents, though had been appointed caretaker committee members, yet they were still acting as such as at the time of the application at the lower Court hence the act was not a completed act. A completed act is the ultimate act beyond which no further action is necessary. Thus, an interlocutory injunction cannot be granted to restrain a completed act. See JOHN HOLTS NIGERIA LTD & ANOR v. HOLTS AFRICAN WORKERS UNION OF NIGERIA AND CAMEROUNS (1963) A.N.L.R In the case of JOHN HOLTS NIGERIA LTD (Supra) the appellants intended to carry out a reconstruction plan which the respondents viewed with concern and therefore instituted an action against the appellants at the trial Court seeking for a declaration and injunction. The plaintiffs/respondents later filed an application for interlocutory injunction to restrain the appellants from the construction plan. It was clear from the facts of the case 14

20 that the Reconstruction Plan had already been introduced and implemented as at the time of the action. Ademola JSC (as he then was) in the leading judgment held thus: The second aspect is the insistence of the learned Judge to continue the hearing of the application for interlocutory injunction when it was so obvious from the facts before him that the object for which the injunction was asked for, namely the introduction of a Reconstruction Plan to the defendant s company had already been effected and the plan had been introduced before the application for the interim injunction was filed. In other words, an interlocutory injunction was no more a remedy for an act which had already been carried out. Unlike in the case of JOHN HOLTS (Supra) the act sought to be restrained by the appellants as at the time of the action at the lower Court was not a completed act. I am therefore of the respectful view that the lower Court was wrong to have refused the application of the appellants on the ground that the act sought to be restrained was a completed act. I therefore resolve this sole issue in favour of the appellant. 15

21 Appeal succeeds. It is hereby allowed. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading the draft copy of the lead judgment written/prepared by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA which has just been delivered. I am in agreement with the reasoning which led to the inevitable conclusion, that the appeal has merit and deserves to succeed. I am also of the same viewpoint. Thus, the appeal is thereby allowed by me. ITA GEORGE MBABA, J.C.A.: I agree. 16

22 Appearances: Chief E. T. O. Njoku For Appellant(s) For Respondent(s)