H.R.H. Chief F.C.B. Isamade V. Chief J. U. Okei & Ors. (1998)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A

The respondents caused a writ of summons to be issued claiming as follows:

“(a) Declaration that the plaintiffs are exclusively entitled to the customary right of occupancy relating to or in respect of Block 67 ID. Iyiowa Layout Odekpe, Ogbaru Local Government Area of Anambra State.

(b) N1, 000.000.00 (One million naira) damages for trespass.

(c) Perpetual Injunction restraining the defendants, his servants, agents and privies or in whatever combination from entering or remaining or in whatever manner, interfering with the plaintiffs’ right of occupancy to the aforesaid Block 67 ID, Iyiowa Layout, Odekpe, Ogbaru Local Government Area.”

The respondent’s application for the writ of summons dated 22nd December was filed on 28th December, 1994. On the very day the writ or summons was applied for and before pleadings were ordered the respondents, by motion on notice supported by affidavit, applied in the following terms-

“restraining the defendant, his servants, agents and or privies or in whatever combination from entering or remaining on or in whatever manner interfering with the plaintiffs’ right of occupancy to the piece or parcel of land popularly known to the parties as Block 67 ID, Iyiowa Layout, Odekpe, Ogbaru Local Government Area, pending the determination of the substantive suit, and for such further order(s) as the Court may deem fit to make in the circumstance.”

Apart from the affidavit in support of the motion-on-notice, the respondents deposed to a further affidavit on 20th March, 1995 in apparent response to a counter-affidavit sworn to on the 9th February, 1995 by the appellant.

Learned counsel for respondents, on behalf of his clients, canvassed the application on the 3rd day of April 1995 when the appellant’s counsel asked for and obtained adjournment for his reply to 4th May 1995. In the meantime, the appellant took advantage of the adjournment to file a motion-on-notice challenging the constitution of the suit by raising the issue of the standing of the respondents to institute the action, the competence or the court to entertain the action as well as his own status as defendant before the court. On the adjourned date, further hearing of the motion for interlocutory injunction was suspended to permit the hearing of the latter motion, questioning the competence of the suit. It was given priority until disposed of on 24th July, 1995 when further hearing on the motion for interlocutory injunction was fixed for 6th November, 1995. But there was no progress on that day because the matter had to be further adjourned to 8th and 11th January 1996 on the ground that the appellant’s counsel was indisposed. On the adjourned date both appellant and his counsel were conspicuously absent from court without proffering any explanation. The learned trial Judge refused the respondents’ request to deliver his ruling without hearing the appellant and adjourned the matter to 11th January, 1996, Once more, on the new adjourned date both his counsel and appellant, without giving any explanation, were absent from court, as the court was otherwise engaged, the hearing of the application was adjourned off record to 15th February, 1996.

On that day both appellant and his counsel were as usual not present in court, although his learned counsel wrote to ask for an adjournment on the ground that he was not well. The request was clearly unacceptable to the court which, after reviewing the antecedents and circumstance of the motion, with particular regard to the appellant’s conduct, proceeded to deliver its ruling. In the ruling, the court granted the relief sought by respondents in the motion-on-notice. The ruling which is very short is setout immediately hereunder in view of the issues or issues raised in the appeal. It reads –

“I have checked my record and I find out that both the defendant and his counsel is treating this court and the application with contempt. A.A. Ononye argued this motion on 3/4/95 and exhibited documents which show the status quo before this action was instituted as per exhibit C. Having regard to the depositions and principles enunciated in the case of Kotoye v. CBN (1989) 1 NWLR (Pt.98) p.419, I also find that the balance of convenience is in favour of the plaintiff. I therefore grant the prayers sought in the motion on notice that is to say:

(1) The defendant, their servants or privies are hereby restrained from entering or remaining on or in interfering with the plaintiff’s right of occupancy of the piece or parcel of land known as Block 67 ID Iyiowa Layout Odekpe in Ogbaru Local Government Area as shown in Exhibit C, i.e. plan NA/AN/212/94 dated 28/2/94 until the determination of this suit.

This ruling is inspired by the utter neglect and nonchalant attitude of the defendant. The fact that courts frown at interlocutory injunction does not mean that courts cannot, in appropriate case not (sic) grant them.” (Italics is mine).

The appellant was thoroughly unhappy with the decision and being dissatisfied appealed to this court on three grounds of appeal. The grounds of appeal are not only prolix but also argumentative contrary to the express provisions of Order 3 rule 2 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990.