IN THE SUPREME COURT OF NIGERIA
ON FRIDAY THE 4TH DAY OF APRIL 2003
ADENUGA AND 5 OTHERS ............................................. PLAINTIFFS/APPELLANTS
ODUMERU AND 7 OTHERS .......................................... DEFENDANTS/RESPONDENTS
BEFORE: Salihu Modibbo Alfa Belgore; Sylvester Umaru Onu; Umaru Atu Kalgo; Samson Odemwingie Uwaifo; Akintola Olufemi Ejiwunmi, JJSC
Whether the appellants, by virtue of being financial members of the Association of National Accountants of Nigeria (eighth respondent), had locus standi to bring an action for an interlocutory injunction restraining the first-third respondents from acting as President, Vice-President and Treasurer respectively of the eighth respondent pending the determination of the action, and other related relief?
The appellants were members of the Association of National Accountants of Nigeria (eight respondents) and were dissatisfied with the way the body was being run. They sought an order restraining the first-third respondents from representing the eighth defendant; a declaration that the first-third defendants could not continue in office; declaring any further official acts done by them void; an order to render account; a declaration that the tenure of the Council members of the eighth defendant had ended; and an order appointing a seven-member interim caretaker council.
The trial Judge granted the injunction and other orders in line with the relief sought by the respondents.
The appellants appealed, and the Court of Appeal allowed the appeal and set aside all the orders made by the trial court, dissatisfied the respondents appealed to the Supreme Court.
The appeal was dismissed.
1. On locus standi
Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. The Statement of Claim must disclose a cause of action and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard. The interest must be real not superficial or merely imaginary, and must be pleaded as such.
The plaintiffs averred only that they were financial members of the eighth defendant; nothing else was pleaded as to their interest in pressing for an annual general meeting and the election of new officers. So there is nothing to indicate why they consider that their rights or obligations had been violated to entitle them to seek relief. Per Uwaifo, JSC at page 3.
2. On application for interlocutory injunction
In an application for an interlocutory injunction, the plaintiff must show that there is a real question to be tried in the substantive suit. This does not require the court to determine the merit of the plaintiff's entitlement to the claim. But it places on the plaintiff an initial burden of showing that there is a serious question to be tried upon the affidavit evidence.
The plaintiff must adduce sufficiently precise factual affidavit evidence to satisfy the court that his claim for a permanent injunction is substantive and not frivolous. Only then will the court go on to consider the balance of convenience. Per Uwaifo, JSC at page 3.
Chief T.A.O. Ogundeyin for the plaintiffs/appellants
Chief Chris Uche and C.A. Chuks-Nnadi Esq. for the first, second, third and eighth defendants/respondents
S.B. Monokpo Esq. for fourth, fifth, sixth, and seventh the defendants/ respondents
The following cases were referred to in this judgment:
Adefulu v Oyesike (1989) 5 NWLR (Part 122) 377
Adesokan v Adegorolu (1997) 3 NWLR (Part 493) 261
Amusa Momoh v Jimoh Olotu (1970) 1 All NLR 117
Egbe v Omegun (1972) 1 All NLR (Part 1) 95
Elufioye v Halilu (1993) 6 NWLR (Part 30) 570
Green v Green (1987) 2 NSCC (Vol. 18) 1115
Obeya Memorial Hospital v A-G, Federation (1987) 3 NWLR (Part 60) 325
Odeneye v Efunuga (1990) 7 NWLR (Part 164) 618
Orji v Zaria Industries Ltd (1992) 1 NWLR (Part 216) 124
Owodunni v Reg Trustees of CCC (2000) 10 NWLR (Part 675) 315
Thomas v Olufosoye (1986) 1 NWLR (Part 18) 669
American Cyanamid Co v Ethicon Ltd  1 All ER 504
Foss v Harbottle (1843) 2 Hare 461
MacDougall v Gardiner (1875) 1 Ch.D. 13
NWL Ltd v Woods  3 All ER 614
Wallersteiner v Moir (No 2) (1975) 2 WLR 389
The following statutes were referred to in this judgment:
Companies and Allied Matters Act 1990: Ss 299; 300
Uwaifo, JSC (Delivered the Leading Judgment):- The appellants as plaintiffs seek six reliefs in the Suit No ID/2853/98 it filed in the High Court of Lagos State, sitting at Ikeja. The first relief upon which, it would appear, the other five could be seen to depend, but not necessarily sustainable simply because of that dependence, asks for:-
"(a) A declaration that the tenure of the first-third defendants as President, Vice-President and Treasurer respectively of the eighth defendant expired by effluxion of time on 26 June 1998."
Apart from the issue of locus standi that was raised later in the course of proceedings, the focus must be the implication of the relief recited above. It seems to represent the cause of action relied on by the plaintiffs. That is to say, the expiration of the first-third defendants' tenure of office by effluxion of time. As a result of that, the plaintiffs want them to cease to exercise the authority of their offices.
The five reliefs that follow may be abbreviated thus: (b) A declaration that the first-third defendants cannot continue in their respective offices. (c) An order of perpetual injunction to restrain them from further parading themselves as representing the eighth defendant. (d) An order declaring any further acts done by them in the respective offices as void. (e) An order for them to render account. (f ) A declaration that the tenure of the Council members of the eighth defendant has ended and an order appointing a seven-member interim caretaker of the eighth defendant to conduct an annual general meeting to constitute a new Council.
The parties exchanged pleadings. I shall confine myself at this stage to paragraphs 2, 3 and 4 of the Statement of Claim and paragraphs 2 and 3 as well as part of paragraph 4 of the Statement of Defence of the first-third and eighth defendants. The said paragraphs of the Statement of Claim read:-
"2. The eighth defendant has a Council which is the highest body and the main decision making organ of the eighth defendant and is constituted every three years nomination at the Annual General Meeting. (sic)
3. That last Council was constituted on 20 January 1994-19 January 1997 when a new Council is required to be appointed.
4. That first and second defendants were appointed President and Vice-President by the last Council on 27 June 1996 for a two year term expiring on 26 June 1998."
The Statement of Defence reacted to the above as follows:-
"2. The defendants admit the status of Council of the eighth defendant but deny that the Council is constituted every three years as neither the Law and Regulations governing the eighth defendant stipulates the tenure of Council, and will at the trial put the plaintiffs to the strictest proof of the said averments contained in paragraph 2 of the Statement of Claim.
3. That paragraph 3 of the statement is denied and the plaintiffs put to the strictest proof thereof. Further there is never a vacuum in the hierarchy nor in the Council since only one third of 18 members of Council would have retired leaving 12 still in the Council and by Council resolution of 24 September 1997 and but for the ex parte order of Justice Olugbani, the baton of succession would have evolved at the Annual General meeting scheduled for 27 September 1998. The defendants will at the trial rely on Regulation 40, 41 (3) of the eighth defendant.
4. The defendants in answer to paragraph 4 of the Statement of Claim repeat paragraph 3 of the Statement of Defence and will at the trial put the plaintiffs to the strictest proof thereof. . ."
The plaintiffs brought a Notice on Motion on 15 December, 1998, the very day they filed their Statement of Claim, praying the court for seven orders. They were virtually in the same nature as the reliefs sought in the substantive action but in one or two aspects they even went beyond. The first of the orders sought was:-
"1. An Order of Interlocutory Injunction restraining the first-third defendants from acting as and/or parading themselves as President, Vice-President and Treasurer respectively of the eighth defendant pending the determination of this suit."
Then followed the remaining six which I have paraphrased thus:- 2. An order appointing a caretaker committee of seven suggested persons to administer the affairs of the eighth defendant; 3. An order directing the first-third defendants to hand over all affairs and documents of the eighth defendant to the caretaker committee who will convey an extraordinary general meeting and to conduct election of new officers within 3 months; 4. An order restraining fourth, fifth, sixth and seventh defendants in the same manner as the first, second and third defendants were sought to be restrained; 5. An order freezing all bank accounts of the eighth defendant; 6. An order freezing the accounts of the Nigerian College of Accountancy, Jos; 7. An order forbidding the Nigerian College of Accountancy from collecting any money.
In the affidavit in support of the motion, it is stated in paragraphs 4 and 5 as follows:-
"4. That the Council of the eighth defendant (the Council) is the highest body and the main decision making organ of the eighth defendant and is constituted every three years by nomination at every third Annual General Meeting.
5. That the last Council was constituted for a three year period on 20 January 1994-19 January 1997 when a new Council is required to be appointed. A copy of the minutes of the meeting is attached and marked Exhibit 'A'."
The affidavit by the first-third and eighth defendants in opposition deposed in paragraphs 6 and 7 thus:-
"6. The paragraph 4 of the affidavit in support of motion is a half truth in that by Regulations 40 and 41, even though Council were constituted on 20 January 1994, 18 of its members one third who have served in office retire but 12 members are eligible for re-election at the Annual General Meeting of the eighth defendant/respondent, a meeting which the plaintiffs/applicants goaded by the fourth, fifth, sixth and seventh defendants/respondents have made impracticable by spates of court actions in Abuja, Lagos and now Ikeja respectively. (sic)
7. That paragraph 5 of the affidavit in support is untrue and in answer I repeat paragraph 6 of the counter affidavit. Further that even though Council was constituted on 20 January 1994, neither the President's speech nor Exhibit 'A' attached to the plaintiffs/applicants' motion, nor the law governing the eighth respondent specifies that Council must be dissolved every three years."
This was, in a nutshell, the state of the information before the learned trial Judge (Manuwa, J) when he made the following orders on 16 June. 1999:-
"1. I make an Order of Interlocutory Injunction restraining the first-third defendants from acting as and/or parading themselves as President, Vice-President and Treasurer respectively of the eighth defendant pending the determination of this suit.
2. I make an order constituting a caretaker committee of the eighth defendant to manage, run and administer its affairs pending the determination of this action. Membership of the said caretaker committee shall be as follows:-three members of the eighth defendant to be nominated by the plaintiffs, three members of the eighth defendant to be nominated by the first-third defendants and three members of the eighth defendants to be nominated by the fourth-seventh defendants, so however that none of the parties herein shall be so nominated personally. The said nine members shall appoint one of themselves to chair or head the caretaker committee.
3. I make an Order directing the first-third defendants to hand-over all the affairs, documents of the eighth defendant to the caretaker committee herein appointed who shall convene an extra-ordinary general meeting of the Association forthwith and conduct election of new principal officers of the Association within three months.
4. I make an Order of Interlocutory Injunction restraining the first, second, third fourth and fifth, sixth and seventh defendants from noting as and/or parading themselves as members of Council of the eighth defendant pending the hearing of this suit.
5. I make an order freezing all bank account of the eighth defendant Association pending the hearing and determination of this suit.
6. I make an order freezing the account of the Nigerian College of Accountancy, Jos, Plateau State of Nigeria pending the hearing and determination of the substantive suit and
7. I make an order forbidding the Nigerian College of Accountancy, Jos, Plateau State of Nigerian from collecting any money whether in cash or cheque, pending the hearing and determination of the substantive suit."
The appeal against the grant of the said orders was fought in the Court of Appeal on four issues, namely: (1) Was the trial Judge right to have granted the reliefs sought on the principles of law of interlocutory injunction; (2) Was the trial Judge right to have granted a relief unrelated to the claims in the Statement of Claim; (3) Was the trial Judge right to have granted a relief sought in the substantive suit; (4) Was the trial Judge right to have granted a relief against a body which was not a party to the suit or the application for the said orders. On 24 January 2000, the Court of Appeal substantially resolved the issues in the negative, allowed the appeal and set aside all the orders made by the trial court.
The plaintiffs have appealed to this Court upon eleven grounds of appeal, some of which are of rather inordinate lengths, while in some of them matters not canvassed at any stage were introduced, such as alleged stealing and embezzlement of the eighth defendant's funds by the first-third defendants; and disobedience of court orders. The following four issues for determination were set down in the plaintiffs/appellants' brief of argument:-
"2.01 Whether having regard to the peculiar facts of this case the trial Judge acted judicially and judiciously in granting all the reliefs sought in the substantive action by the plaintiffs/appellants at the interlocutory stage more so when the dispute had to do with mismanagement and embezzlement of the funds of the eighth defendant/respondent by the first-third defendants/respondents?
2.02 Whether the plaintiffs/appellants were denied fair hearing when the lower court decided the appeal before it only on the bundle of documents filed by the defendants/appellants before it and completely ignored the bundle of documents filed by the plaintiffs/respondents now appellants and thereby occasioning a miscarriage of Justice?
2.03 Whether the court below decided the appeal before it to wrong principles of Law and in particular the rule in Foss v Harbottle when the case on appeal clearly falls within the exception to that rule?
2.04 Whether the court below was right in allowing the defendants' appeal and dismissing the appellants' case when the defendants acted in contempt of the orders of the lower court by fraudulently collecting funds belonging to the eighth defendant and spending all the funds without banking them and clearly in violation of the injunctive orders of the lower court dated 18 December 1998 and 16 June 1999 restraining the first-third defendants from collecting and/or in any way spending the funds of the eighth defendant?"
The fourth-seventh respondents filed a brief of argument in which learned Counsel for them virtually aligned himself with the case of the appellants. At the hearing of the appeal this Court pointed it out to the learned Counsel that since he filed no appeal on behalf of the fourth-seventh respondents, he could not be heard upon such a freak advocacy intended to project the appellants' position. Accordingly, I intend to discountenance the brief of argument filed on behalf of the fourth-seventh respondents and will not entertain the oral argument of Mr S.B. Monokpo as Counsel for them.
I have examined the substance of the issues reproduced above against the grounds of appeal and the judgment of the court below. I need to make relevant observations. In respect of Ground 1, the complaint is that the court below preferred the issues raised by the appellants to those of the respondents before that court as being more germane to the grounds of appeal. No issue is formulated regarding this ground. If Issue 2 was intended to cover it, of which there is nothing to indicate, no argument has been proffered in support. Ground 2 complains that the court below nowhere in its judgment referred to the facts deposed to by the fourth defendant. There is no issue formulated regarding this ground and in any event no worthy argument in support. The same observation applies to the following other grounds, namely Ground 3 (which complains of failure of the court below to consider the facts deposed to by the plaintiffs); Ground 6 (which complains that the court below erred to have held that the plaintiffs did not disclose the nature of their legal right); Ground 7 (which complains that the court below thought that the interlocutory application was a subterfuge to get orders in respect of reliefs to be considered after a full trial); Ground 9 which complains that the court below thought it was improper for the trial court to grant all the reliefs sought in the substantive suit by the orders it made); Ground 10 (which complains of looting, embezzlement and disobedience of court order when none was an issue at any stage of the proceedings); Ground 11 (which in part complains of the court below descending into the arena and failing to act as unbiased umpire when there is nothing on record to that effect).
Grounds 4 and 5 appear to be complaints against the view of the court below that it was not enough that plaintiffs alleged that they were financial members of the eighth defendant without showing the proportion they represented among the total financial membership. It was in this connection Foss v Harbottle (1843) 2 Hare 461 and Wallersteiner v Moir (No 2) (1975) 2 WLR 389 were cited by the court below. Finally, Ground 8 is about the view of the court below that the relationship between the Nigerian College of Accountancy, Jos and the eighth defendant was not shown (for example to be that of principal and agent) so as to justify making an order against the former who was not a party in the case.
A close study of the four issues for determination and the eleven grounds of appeal reveals to me the following: (a) Issues 1, 2 and 4 are not reasonably referable to any of the grounds of appeal. Furthermore, the question of mismanagement and embezzlement of funds and the fraudulent collection and spending of funds belonging to the eighth defendant by the first-third defendants without banking them as stated in Issues 1 and 4 were neither pleaded in the Statement of Claim nor deposed to in the affidavit in support of the motion for interlocutory injunction which gave rise to this appeal. They were not in the circumstances matters canvassed or capable of being canvassed in the proceedings.
As regards Issue 3, it would appear this was formulated from Grounds 4 and 5. The court below made reference to the averment in the Statement of Claim (as equally deposed to in the affidavit in support of the motion) which says that the plaintiffs are financial members of the eighth defendant and that by virtue of that they have a right to bring this action. The view was then expressed that that was not enough to entitle them to bring the action to seek the type of relief claimed therein. The learned trial Judge had expressed a contrary view. The court below said in part in this regard:-
"In accepting the view that being merely a financial member was sufficient, the learned trial Judge overlooked the fact that the majority of the financial members of the eighth defendant who at the end of the day are those to elect the officers for the eighth defendant might choose not to make any issue of the fact that the first to third defendant had overstayed their tenure. See Foss v Harbottle (supra) and Wallersteiner v Moir (supra) at 395."
The appellants have attacked this observation of the court below and argued that the two authorities cited were irrelevant to this case. I agree with the appellants. The rule established in Foss v Harbottle is simply that when a decision has been irregularly taken on behalf of a company, it will be futile for the minority shareholders to take legal steps to oppose it since, if it is a decision the company or corporation can take, the majority share holders can easily ratify it. That is a rule which in that case has resulted from the refusal of the court to interfere in the management of a company at the instance of a minority of members who were dissatisfied with the conduct of the company's affairs by the majority or by the board of directors on the basis that it is a waste of time to seek to get the court to set aside what may be ratified by a majority of members once it is within their power to do so. As Mellish, LJ put it in MacDougall v Gardiner (1875) 1 Ch.D. 13 at 25:-
". . .if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes."
The rule is now given statutory effect under Section 299 of the Companies and Allied Matters Act, 1990. There are, of course, known exceptions now also provided in Section 300. Neither the rule nor the exceptions can be seen to apply or be intended to apply to the circumstances of the present case. The case Wallersteiner v Moir (No2)  1 All ER 849; (1975) 2 WLR 389 cited and relied on by the court below also bears no relevance to this case.
However, the court below did not stop with the rule in Foss v Harbottle. It cited Thomas v Olufosoye (1986) 1 NWLR (Part 18) 669 where this Court held that a communicant in the diocese of an Anglican Church did not by that fact alone have sufficient interest to bring a suit to challenge the election of a Bishop of the Diocese of that Church. Accordingly, the court below said that the appellants having merely averred in their Statement of Claim to be financial members of the eighth defendant did not thereby disclose sufficient interest to support their locus standi to bring the action. I think there is merit in this view. Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi, the Statement of Claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard upon the reliefs he seeks: see Adefulu v Oyesile (1989) 5 NWLR (Part 122) 377; Odeneye v Efunuga (1990) 7 NWLR (Part 164) 618; Adesokan v Adegorolu (1997) 3 NWLR (Part 493) 261; Owodunni v Reg Trustees of CCC (2000) 10 NWLR (Part 675) 315.
The interest which a plaintiff alleges must be such, as pleaded, which can be considered to be real not superficial or merely imaginary. In Amusa Momoh v Jimoh Olotu (1970) 1 All NLR 117, it was held that it was not enough for a plaintiff to state that he was a member of the family laying claim to a chieftaincy title; he has to go further to aver in the Statement of Claim that he has interest in the chieftaincy title. Not only that, the Statement of Claim must show how his interest in the chieftaincy title arose. In his observation in reference to the Statement of Claim in that case, Ademola, CJN said at 123:-
"Now, what is the averment in paragraph 1? The plaintiffs says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to state that he has an interest in the chieftaincy? Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his Statement of Claim how his interest in the chieftaincy title arose."
In the present case, apart for the averment in paragraph 1 of the Statement of Claim, which I set out at the beginning of this judgment, that the plaintiffs are financial members of the eighth defendant, nothing else whatsoever was pleaded as to their interest in pressing for an annual general meeting and the election of new officers. So there is nothing to indicate why they consider that their rights or obligations have been violated to entitle them to seek the various reliefs in the suit they brought. Looking at the averments in the Statement of Claim as a whole, one fails to see any cause of action in the plaintiffs. This failure to discover the cause of action has enormous bearing on the application for the interlocutory injunction in which the plaintiffs sought and obtained such elaborate and far-reaching orders.
In an application for an interlocutory injunction, the plaintiff must show an existence of his right which needs to be protected in the interim. He must at the same time satisfy the court that there is a real question to be tried in the substantive suit: see Egbe v Onogun (1972) 1 All NLR 95 at 98. This does not require the court to determine the merit of the plaintiff's entitlement to the claim. But it places on the plaintiff an initial burden. It is the burden of showing that there is a serious question to be tried upon the affidavit evidence (as well with averments in the Statement of Claim, if any has been filed): see Obeya Memorial Hospital v A-G of the Federation (1987) 3 NWLR (Part 60) 325.
It is necessary to emphasise that it is of vital importance for a plaintiff seeking an interlocutory injunction to adduce sufficiently precise factual affidavit evidence to satisfy the court that his claim for a permanent injunction at the trial is not frivolous; or at any rate, based on the substantive claim, to produce affidavit evidence to satisfy the court in justification of his application for an interlocutory injunction to maintain the status quo. It is only when this has been done that it will become necessary for the court to proceed further with the application to consider the balance of convenience. Otherwise the application ought to be refused at the point the court is not so satisfied. This is clear from the observation made by Lord Diplock in American Cyanamid Co v Ethicon Ltd  1 All ER 504 at 510 as to what should be the approach in considering an application for an interlocutory injunction.
He said inter alia:-
"It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence of affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. . .so unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction that the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."
It seems to me that even if there had been no cause for me to comment adversely on the complaints laid in the grounds of appeal and the issues set down for determination, this appeal stood no chance of succeeding. The likelihood that a plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the Judge in weighing the risks that injustice may result from his deciding the application for an interlocutory injunction one way rather than the other: see NWL Ltd v Woods  3 All ER 614 at 626.
The learned trial Judge in the present case, with due respect to him, was not circumspect in the exercise of his discretion. He did not take into consideration the apparent barrenness of the Statement of Claim for failure to establish locus standi and cause of action. He did not take into account that there were conflicts of evidence on affidavit as to whether (a) all the plaintiffs were still financial members; (b) all the Council members retire at the same time every three years or only one-third at a time retire according to the Rules and Regulations which the first-third defendants cited; (c) some ex parte orders made by courts in Abuja and Lagos, particularly the one by Kusherki J in Abuja were militating factors against the first-third defendants' ability to call a meeting as they deposed; (d) the effect of the orders he made decided the substantive reliefs in an irreversible way when such was most inappropriate, undesirable and indefensible in the circumstances of this case. He even made orders against a non-party - the Nigerian College of Accountancy, Jos - by freezing its accounts and forbidding it from collecting funds, orders which were clearly not in law binding on them: see Green v Green (1987) 2 NSCC (volume 18) 1115. These same orders were, in addition, not related to the reliefs claimed in the substantive suit and in principle cannot be made as permanent orders at the trial. It follows that the grant of those orders in the interim cannot be justified. What the learned trial Judge did was simply and clearly an indiscreet use of judicial powers.
The court below had no option but to put an end to the gross injustice which the interlocutory injunction and other orders granted by the trial court engendered. I find no merit in this appeal. It is dismissed with
N10,000 costs against the plaintiffs/appellants in favour of the first-third defendants/ respondents.
Belgore, JSC:- The mere fact that appellants are financial members of the eighth defendant has not conferred on them locus standi because that alone would not disclose sufficient interest for them to bring this action.
Looking at the Statement of Claim the appellants have not disclosed sufficient interest to justify their bringing this action. A party suing must in his Statement of Claim aver enough facts to indicate what his interests are in the matter and how those interests stand threatened if the action was not brought. It is not enough to blandly state that he has an interest, there must be an averment that the interest is threatened. Adefulu v Oyesike (1989) 5 NWLR (Part 122) 377; Adesokan v Adegorolu (1997) 3 NWLR (Part 493) 261. Thus an existence of a right legally capable of being defended must be manifested in the affidavit so as to attract court's discretion to grant an interlocutory injunction. The affidavit in support of such application must clearly and not superficially indicate the clear interest of the applicant and real possibility of that interest being under threat of either being vitiated or extinguished if the injunction is not granted.
The trial court was in gross error to have granted the interlocutory injunction and some other prayers not sought on affidavit bereft of any notion of an interest or threat to that interest. I therefore agree with my learned brother, Uwaifo, JSC that this appeal has no merit, I also dismiss the appeal with
N10,000 costs against the appellants in favour of first-third defendants/ respondents.
Onu, JSC:- Having been privileged to have a preview of the judgment of my learned brother Uwaifo, JSC just delivered, I agree with him that there is no merit in the plaintiffs/appellants' appeal. Accordingly, I too dismiss it and award
N10,000 costs in favour of the defendants/respondents.
Kalgo, JSC:- I have had a preview of the judgment of my learned brother Uwaifo, JSC just delivered. I entirely agree with him that there is no merit in the appeal and it ought to be dismissed. The learned trial Judge exercised his discretion indiscreetly after hearing the interlocutory application in the light of the evidence before him particularly in making orders against the interest of persons who were not parties before him. He also made orders which have the effect of deciding substantive issues in the case. This he cannot do in the light of the decision in Elufioye v Halilu (1993) 6 NWLR (Part 30) 570 at 596; Orji v Zaria Industries Ltd (1992) 1 NWLR (Part 216) 124 at 141; Egbe v Omegun (1972) 1 All NLR (Part 1) 95. The Court of Appeal was perfectly right in my view, to allow the appeal in the circumstances and set aside the orders made by the trial court. I therefore dismiss the appeal with
N10,000 costs in favour of the first-third defendants/respondents.
Ejiwunmi, JSC:- I was privileged to have read in advance the draft of the judgment just delivered by my learned brother Uwaifo, JSC. As he has cogently considered the issues raised in this appeal before concluding that there is no merit in the appeal, I also adopt the judgment as my own.
In the result, I also dismiss the appeal and award to the first-third defendants/appellants, costs in the sum of