Sabru Nigeria Limited V. Jezco Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

The facts leading to this appeal can be summarised as follows:- The appellant in this appeal was the defendant in the court below; while the respondent was the plaintiff at the court. The plaintiff in that court sued the defendant by a writ dated 6/12/96 for a declaration, damages and a perpetual injunction, the plaintiff also on the same date by a motion Ex-parte sought for an interlocutory injunction to restrain the present appellant, its servants, agents or privies from entering, building or in any other way interfering with the partly developed stores at Jimeta Motor Park Pending the determination in this suit. (Italics are for emphasis).

The appellant contends that he was neither served with the writ of summons nor with the motion papers. The entire application was heard without any notice of such notice of motion given to the appellant. The learned trial Judge heard argument from counsel to the plaintiff and granted all prayers sought by the plaintiff. There was no undertaking as to damages extracted from the plaintiff/applicant.

Dissatisfied with the ruling of the trial Judge dated 12/12/96 the appellant has appealed to this court on three grounds which are set out hereunder:-

GROUNDS OF APPEAL

1. “The learned trial Judge erred in law when he granted an interlocutory injunction pending the determination of the suit against the appellant herein upon an ex-parte motion by the respondent, without affording the appellant an opportunity to be heard on the application”.

PARTICULARS OF ERROR:

(i) “The Constitutional right of fair hearing as enshrined under section 33(1) and (2) of 1979 Constitution (as amended and preserved) was totally disregarded in the proceedings of the court below in making an order of injunction against the appellant ”

(ii) The appellant was not given any hearing at all not to talk of fair hearing.

2. The learned trial Judge erred in law when he proceeded with an assumed jurisdiction in the application for interlocutory injunction in utter disregard and complete violation of appellant’s fair hearing which proceeding thereby occasioned a miscarriage of justice. ”

PARTICULARS:

(i) The trial Judge allowed himself to be persuaded only by hearing from the respondent and making an order prejudicial to appellant.

(ii) The learned trial Judge has formed an impression without hearing appellant.

(iii) The rules of natural justice have been violated to the prejudice of appellant’s case.

3. The learned trial Judge erred in law in granting an order of interlocutory injunction against the appellant in an ex-parte application without respondent making any undertaking as to damages. ”

PARTICULARS:

(i) “The respondent did not give any undertaking as to damages in his affidavit in favour of appellant.