Emmanuel Urhobo & Anor V. Major General B.i. Oteri & Anor (1998)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

This is an interlocutory appeal against the ruling of Awala J. of the High Court of Justice of Delta State sitting at Warri and delivered on 2-12-1997. The appellants who were the plaintiffs by a writ of summons filed suit No. W/399/96 against the respondents as the defendants at the court below and claimed mainly declaratory reliefs and injunction. The writ of summons accompanied by a motion ex-parte and a motion on notice for interim and interlocutory injunction were filed on 23-12-1996 at the trial court. The ex-parte motion for interim injunction pending the determination of the motion on notice for interlocutory injunction was granted by Dorubo Narobor J. of the Warri High Court on the same 23-12-1996 while the motion on notice was adjourned for hearing on 6-1-1997 but remained unheard up to today for reasons which are not apparent from the record of this appeal.

Meanwhile, pleadings were duly filed and exchanged between the parties.

The respondents as defendants in their statement of defence paragraphs (3) raised points of law alleging that the appellants as plaintiffs had no locus standi to institute the action which according to the respondents disclosed no cause of action. While the appellants’ motion on notice for interlocutory injunction and the suit itself were awaiting a date for hearing, the respondents filed a motion on notice on 5-2-1997 asking that the points of law raised in their statement of defence be set down for hearing. Before a date could be fixed for the hearing of this motion, the appellants filed another motion on notice on 1-2-1997 asking the lower court to restrain the respondents’ counsel from appearing for them, set aside all the processes filed by him and stay further proceedings in the matter. This motion was heard and dismissed by the lower court on 25-2-1997. The appellants were granted leave to appeal against this ruling but their application for stay of further proceeding pending appeal was heard and dismissed by the lower court on 29-5-1997. While the substantive suit, the appellants’ motion for interlocutory injunction and the respondents’ motion to set down the points of law raised on the application of the appellants on 26-6-1997, the entire suit was transferred from Narohor J. to Awala J. for hearing and determination.

However by a motion on notice dated 17-11-1997, the appellants again applied for the joinder of the Attorney-General of Delta State and the Chief Registrar of the High Court of Justice, Delta State as co-plaintiffs and also asked for stay of further proceeding in the suit pending the determination of the motion on notice. When this motion came up for hearing before Awala J. on 2-12-1997, the appellants’ motion for interlocutory injunction filed since 23-12-1996 and the respondents’ motion to set down the points of law raised in their statement of defence for hearing filed on 5-2-1997, were also on the list for hearing.

Learned counsel on both sides then addressed the lower court on the issue or which of the motions should be heard first. While the learned counsel to the respondents contended that the respondents’ motion to set down the points of law raised in the respondents’ statement of defence should be taken first and in the alternative, the interim order of injunction granted to the appellants since 23-12-1996 should be discharged, the learned counsel to the appellants insisted that the appellants’ motion for joinder dated 17-11-97 should be taken first. In a short ruling, the learned trial Judge decided that the respondents’ motion fur the dismissal of the appellants’ suit should be taken first. The ruling reads:

“It is correct that where there are two applications one constructive and the other destructive, the constructive one should be taken first but this is grounded on the equity of the case. It is not equitable in this instance to take the constructive one first because the parties sought to be joined do not show interest in the case, they are absent.

Secondly, the court usually lean in favour of what will save costs and time. Accordingly I hold the view that the motion for dismissal be taken first to save costs and time.”

The learned counsel to the appellants who did not expect this ruling the way it was pronounced by the lower court, applied for an adjournment of one week. The application was opposed by the learned counsel to the respondents who later conceded the adjournment if the interim order for injunction were discharged. The lower court however refused the application for adjournment and proceeded to set down the respondents’ motion for dismissal for hearing and determination forthwith.

There and then, counsel to the appellants applied to he discharged from the case in the absence of an adjournment. Counsel to the respondents had no objection to the application for withdrawal from the case hut conceded to an adjournment if the order for interim injunction were to be discharged. The learned trial Judge in his ruling not only discharged the learned counsel for the appellants from the case but also conceded to the application of the learned counsel the respondents in setting aside the interim order of injunction of 23-12-1996 and the application for adjournment. The short ruling reads:

“”Mr. Akpomudje is discharged from this case on his application.

I agree with Mr. Osaze Uzzi that an interim order is not expected to last this long – one year – While several attempts are made by the holder to further prolong the hearing of the case. This is not fair. Interim order is expected to be used as a shield but not as a sword, to protect the res of the action. Where the party in whose favour the order is made is doing all he can to frustrate the hearing of the interlocutory motion on notice and the substantive action itself it is only fair and proper to discharge it. He who holds equity must do equity. Accordingly the interim order dated 23-12- 96 is discharged.

I make no order as to cost. The case should be adjourned for further hearing.

Court: This case is adjourned to 26/2/98 for hearing of the defendants’ motion for dismissal.”