➥ CASE SUMMARY OF:
Secondi Bogban & Ors. V. Motor Diwhre & Ors. (CA/B/88/2003, 20 MAY 2005)
by Branham Chima.
➥ ISSUES RAISED
Motion ex parte;
Interlocutory injunction;
Jurisdiction.
➥ CASE FACT/HISTORY
The respondents as plaintiffs commenced this action before the High Court of Justice, Delta State, sitting at Effurun Judicial Division, wherein the respondents claimed the following reliefs: (1) A declaration that the plaintiffs are entitled to a statutory right of occupancy, over that piece or parcel of land known as Orhan Ujo land, situate and lying at Obughere Quarters in Orhuwhorun Town in Udu Local Government Area of Delta State, a place within the jurisdiction of this Honourable Court. (2) The sum of N100,000.00 (One hundred thousand Naira) as special and general damages for trespass committed by the defendants, when defendants broke and entered the said piece or parcel of land sometime in April, 1997. (3) An Order of perpetual injunction restraining the defendants by themselves, their servants, agents, workmen and/ or privies and all persons claiming under and/or through them from entering, remaining and/or in any way interfering with the plaintiffs’ ownership of the said piece or parcel of land; and (4) Any other suitable equitable reliefs as this Honourable Court may deem fit to make in the circumstances. The respondents sought and obtained leave of the court to sue in a representative capacity.
The motion dated the 14/9/99 was also not argued, when the respondents brought a motion ex-parte dated the 22/2/2001, for an order of interim injunction. The court on the 1st day of March, 2001, granted the order of interim injunction pending the hearing and determination of the motion on notice filed on the 14/9/99. The appellants on the 16/3/2001, filed a motion seeking the leave of court to discharge the interim order of injunction. The court ruled on the motion to discharge the injunction and dismissed same. Aggrieved by the ruling of the court dismissing the said motion, the appellants sought and obtained the leave of this court to appeal against the said order of injunction.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Whether the learned trial Judge was right in granting the interim order of injunction?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THERE WAS NO REAL URGENCY WARRANTING THE GRANT OF THE EX PARTE INJUNCTION
‘The interference with res alleged by the respondents was that the appellants were making moves to sell the land the subject matter of dispute to a named person. From the principle enunciated above, the circumstances to justify the grant of the ex-parte order must be such that in the time available, it is impossible or extremely difficult to put the respondents on notice early enough to prevent the injury sought to be restrained. Making moves to sell the land in dispute is not a matter of real urgency, pervading real urgency that would not necessitate putting the respondents on notice. The suit was filed before the trial court since 1997. There was a motion before the court for interlocutory injunction filed since 1999. The motion ex-parte was filed in 2001, while the parties were already before the court. The trial court ought to have directed the motion on notice already filed before the court to be heard instead of proceeding to hear and grant the interim injunction sought, notwithstanding the motion on notice already filed before the court. From the facts in the instant case as can be gleaned from the affidavit evidence in support of the motion ex-parte for interim injunction, there was absolutely no basis for the grant of the interim injunction as there was no deposition whatsoever showing extreme urgency necessitating the grant of an interim injunction ex-parte by way of affidavit of urgency.’
‘Trial courts should be reluctant to make interim orders ex-parte unless the circumstances are exceptional and the opposing party cannot be put on notice. The order of interim injunction ought not to have been made in the circumstances of this case. The court ought to have directed the motion on notice to be heard instead of proceeding to hear the motion ex-parte and it was therefore a wrong exercise of discretion to hear the application ex-parte to restrain the appellants when there was no question of real urgency involved and is therefore a clear breach of the appellant’s rights to fair hearing as enshrined under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. See Also, Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (supra); Sabru Nigerian Ltd. v. Jezco Nigeria Ltd. (supra).’]
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↪️ II. Whether the learned trial Judge was right in making an order amending the date of the motion on notice where neither party asked for same?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE AMENDMENT OF DATE WAS NOT ASKED FOR – COURT CANNOT GRANT WHAT WAS NOT ASKED FOR
‘A court has no jurisdiction to give a party a relief he has not asked for. In the present case, the respondent did not ask for amendment of the date of the motion on notice either by way of motion or even Vica-voce. See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Ayangboye v. Balogun (1990) 5 NWLR (Pt. 151) 392. The Supreme Court said per Karibi Whyte, JSC, at page 1714 in Akinterinwa v. Oladunjoye (supra). Page 117 of NWLR “It is both fundamental and an elementary principle in the determination of actions before a court or tribunal, that the adjudicating body is bound to limit itself to the claim before it. A court may make incidental orders which follow naturally from the relief claimed and to strengthen the relief claimed. A court has no power, and is not under any circumstances entitled to award a relief not claimed by the party in the writ of summons and statement of claim. See Egonu v. Egonu (1978) 11- 12 SC 111; Obioma v. Olomu (1978) 3 SC 1; Chief Registrar v. Vamos (1971) 1 SC 33. Elumeze v. Elumeze (1969) 1 All NLR 311.”’
‘The motion on notice for interlocutory injunction was filed on 14/9/99 while the motion for interim injunction was filed on 22/2/2001. In his ruling granting the interim order of injunction the lower court ordered the applicant to amend the date on the motion for interlocutory injunction on the ground that the order of interim injunction made did not specify what date the interlocutory injunction was filed. What was not clear from the record was the nature of the amendment. Was it to amend the date of the motion on notice to read a date after the motion for interim injunction was granted. Whatever be the nature of the amendment, that amendment of the date was not asked by any of the parties before the court and the court therefore has no business to grant it and it is not an amendment that follow naturally from the order made by the lower court. It is my view that if the amendment was to bring the application for interlocutory injunction forward as if it was filed together with the application for interim injunction or immediately thereafter, then such an amendment, with respect, is fraudulent in the circumstances of the present case. It is not therefore a judicious exercise of discretion. It is not one that can be said to be granted under Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria.’
‘An amendment changing the date of filing any of the two motions and ipso facto the order in which the motions were filed cannot be made as a matter of course, being an amendment materially affecting the issue in the motion. It was not made by consent of the parties nor was there a motion seeking that relief. The respondent did not ask for that relief. There is a period of well over one year between the dates of the two processes. With all due respect it borders dangerously on fraud for the court below to suo motu make an amendment, the effect of which is to alter the order (relating to dates) in which the motions were filed. The trial court appeared to have worked from the answer to the problem instead of working Vice-versa.’]
.
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↪️ III. Whether the trial court was right in granting the order of interim injunction when there was pending before the court a motion challenging the competence of the entire suit which motion had been argued, but no ruling delivered?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE COURT SHOULD HAVE DELIVERED ITS RULING ON JURISDICTION FIRST
‘In the instant case, the appellant had filed a motion before the lower court on the 7/10/97, challenging the competence of the entire suit. The court heard arguments in respect of the said motion. The motion was still pending and no ruling delivered when the court heard the ex-parte motion and granted the injunction sought. Based on the above, the lower court ought not to have heard the motion and grant the injunction. It would have delivered its ruling on the motion challenging the competence of the suit before it since arguments have already being concluded. Courts have been cautioned several times to always jealously guard their jurisdiction not to embark on an exercise in futility. The issue of jurisdiction is a fundamental prerequisite in the adjudication of any matter. Where a court does not have the jurisdiction to entertain a suit before it, the proceedings however well conducted, will be a nullity. Once the issue of jurisdiction is raised, it should be determined by the court.’
‘It is always in the interest of justice for the court to hands off the matter and enquire into the existence or lack of jurisdiction to entertain a cause or matter before it. It cannot do anything in furtherance of the cause or matter. In the circumstances, the learned trial Judge would have determined the issue of jurisdiction raised before him before embarking to hear the motion ex-parte and grant the ex-parte injunction sought. This is clearly erroneous. This issue is also resolved in favour of the appellants.’]
.
.
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✓ DECISION:
‘ Finally, with the resolution of all the issues formulated in this appeal in favour of the appellants, the appeal succeeds and it is hereby allowed by me. The ruling of the lower court delivered on the 15/10/2001 is hereby set aside. The order of interim injunction made on the 1/3/2001 is accordingly discharged. The costs is assessed and fixed at N3,000.00 only.’
➥ FURTHER DICTA:
⦿ PRINCIPLES GUIDING THE GRANT OF OR REFUSAL OF INTERIM INJUNCTION
The principle of law regarding the right to grant or refuse interim injunctions are well stated in our Law books. The Supreme Court in Kotoye v. C.B.N. (supra) at page 440, the court per Nnaemeka-Agu, JSC, observed: “I think it is correct to say that ‘ex-parte’ in relation to injunctions is properly used in contradistinction to a motion 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 or with notice to the other side as is appropriate. By their very nature, injunctions granted on ex-parte applications can only be properly interim in nature. They are made without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the respondent can be put on notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on ‘real’.” — Abba Aji, J.C.A.
⦿ IF THE MATTER IS NOT URGENT, THERE IS NO BASIS FOR THE GRANT OF EX PARTE INJUNCTION
The basis therefore for granting an ex-parte order of injunction is the existence of special circumstances, invariably, all pervading real urgency, which requires that the order must be made, otherwise an irretrievable harm or injury would be occasioned to the prejudice of the applicant. This simply means that, if the matter is not shown to be urgent there is no reason why ex-parte order should be made at all. The existence of real urgency is a sine qua-non for a proper ex-parte order of injunction … The duration of its potency is always limited to a short period. See Order 8 Rule 11. Courts must ensure that an ex-parte order of injunction is not allowed to over stay. Delay or inaction is not tolerated by the court and the counsel to the party that obtained an interim order should act very fast to see that all that needs to be done in order not to make it as if getting the ex-parte injunction was all that concerned him. Based on the foregoing, the learned trial Judge ought to have discharged the order of injunction when no urgency was shown in the application and his failure to do so occasioned miscarriage of justice. This issue is also resolved in favour of the appellants. I now move to issue number three, whether the learned trial Judge was right in making an order amending the date of the motion on notice when neither party asked for same. — Abba Aji, J.C.A.
⦿ COURT THAT GRANTED AN INTERIM INJUNCTION CAN ALSO VACATE IT
The jurisdiction to vary or discharge an order made ex-parte is almost always rested in the court that made it. It might be by the same or another Judge of the same court. See S.A.P. (Nig.) Ltd. v. C.B.N. (2004) 15 NWLR (Pt 897) 665. — Abba Aji, J.C.A.
⦿ INTERIM INJUNCTION IS NOT FOR AD-INFINITUM
The order of interim injunction is not meant to provide a temporary victory to be used against an adverse party ad-infinitum. It should not be allowed to hang on the opposing party. — Abba Aji, J.C.A.
⦿ LIFE IS GIVEN TO A COURT PROCESS THE MOMENT IT IS FILED AT THE REGISTRY, NOT TILL WHEN IT IS HEARD IN COURT
The argument of the respondents’ counsel on this issue is totally misconceived. A person makes his application to the court at the time he files his application. By the time the application is filed, life is being given to it and it stands as subsisting application pending before the court and the moving of such an application is at the discretion of the court. To say as did the respondents’ counsel that life is not given to the application until when it is moved is therefore a misconception of the rules of court. Where a person prepares the application and did not file it in court, then he has not given life to it. He may decide not to file it at all. He may keep it, retain it or abandon it, so long as it has not been filed in court, no life has been given to it.. It is just like commencement of action by means of any of the processes of court as provided by our rules of court. Once a person has taken out a writ of summon or any of the originating processes against a party, he is said to have commenced the action against that particular party and life is given to the writ or originating process as soon as it is filed and not when hearing commences in the matter, when life could be said to be given to the process by which the action was filed. Assuming an application which was duly filed in court is adjourned several times before it is heard, can it be said that the application has not been given life? I think not. It is also my view based on the above that this issue is also resolved in favour of the appellant. — Abba Aji, J.C.A.
⦿ JURISDICTION CAN BE RAISED AT ANY TIME AND SHOULD BE CONSIDERED EARLIEST
It is settled law that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal. Jurisdiction is regarded as a threshold issue and a life line for continuing any proceedings, that objection to jurisdiction ought to be taken at the earliest opportunity provided there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction the entire proceedings are a nullity no matter how well conducted. See Western Steel Works Ltd. v. Iron and Steel Workers Union (1986) 3 NWLR (Pt.30) 617; Barclays Bank of Nigeria v. C.B.N. (1976) 6 SC 175; Aloha v. Akereja (1988) 3 NWLR (Pt. 84) 508; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350: Jeric (Nig.) Ltd. v. U. B.N. Plc. (2000) 15 NWLR (Pt. 691) 447 and NDIC v. C.B.N. (2002) 7 NWLR (Pt. 766) 272. It is always in the interest of justice to raise the issue of jurisdiction at the earliest opportunity so as to save time and costs and to avoid a trial in nullity. See Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675, at 693 where Belgore, JSC, said: “It is desirable that preliminary objection be raised early on issue of jurisdiction, but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva-voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.” See also Enweremadu v. Ohajuruka (supra) at 478 when Ikongbeh, JCA held inter alia: “Once the jurisdiction of court is called into question, it becomes powerless to do anything in a cause or matter before it other than to inquire into the existence or lack of jurisdiction to entertain the cause or matter, it cannot do anything in furtherance of the cause or matter.” — Abba Aji, J.C.A.
➥ LEAD JUDGEMENT DELIVERED BY:
Abba Aji, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Ikhide Ehighelua, Esq.
⦿ FOR THE RESPONDENT(S)
O.J. Oshevire, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
