Nnaemeka Chukwuogor & Anor. V. Chukwuogor (Nig.) Ltd. & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

The background of the facts of this appeal is as follows: The 2nd respondent commenced proceedings in the High Court of Cross River State which sat at Ikom, before Honourable Justice M. O. Eneji. The writ of summons which was issued on 2/6/2003, sought the following reliefs:-

(a) A declaration that the estate which the defendant purports to manage is owned by the 1st plaintiff and therefore subject to the Administrator General Law Cap. 3, Laws of Cross River State.

(b) An order for the revocation of the letters of administration granted to the 1st defendant.

(c) An order of perpetual injunction restraining the defendants, their agents, servants or privies from intermeddling with the estate of the 1st plaintiff.

(d) The sum of N 10 million as general damages for intermeddling with the estate of the 1st plaintiff.

Simultaneously with the issue of the writ of summons, the 1st plaintiff sought also an interim order of court in this form –

1. An interim injunction restraining the defendants, their agents, servants or privies from further interfering in any manner howsoever with the assets and properties of the 1st plaintiff situate at No.3 and 5 Ogoja Road, Ikom, 4 Chukwuogwor Lane, Ikom, plots at Old Army Barracks, Ikom and Cocoa Farm Plantation at Okunde, Etomi Road and Agbobua Mgbabor along Effreya Road, pending the determination of a motion on notice.
2. An order of interim injunction restraining the defendants, their agents, servants or privies from collecting rents from tenants or purporting to lease out the aforesaid properties pending the determination of a motion on notice.

The motion was supported by a lengthy affidavit. The ex parte motion was taken by the learned trial Judge, who on page 96 of the record of proceedings showed that the interim order was made in terms of the prayers stated above.

The 1st and 2nd defendants were aggrieved by the interim order of the High Court, they filed an appeal against it on 6/6/03. The six grounds of appeal filed are contained on pages 98 – 103 of the record of proceedings. The prayers sought on appeal by the 1st and 2nd respondents/appellants are to allow the appeal and set aside the order of the lower court made on 3rd June, 2003. In a subsequent brief of the appellant, the appellant averred that this interim order was made on 3rd not 4th June, 2003 as shown on page 96 of the record: see also page 109, and that it was a “prearranged order”.

The 1st and 2nd respondents/appellants also filed a motion in the High Court, and sought as follows: “All order to stay the execution of the order of the High Court made on 3rd June, 2003, and all order to stay further proceedings in the suit No. HM/103/2003 pending the determination of the appeal of the suit.” The motion was supported by an affidavit.

The 3rd and 4th respondents to the order of the 4th June, 2003 being defendants to the suit also filed an appeal to the interim order. The grounds of appeal are contained on pages 117 – 120 of the record of proceedings. They also seek an order of the court of Appeal to set aside the interim order of the High Court made in favour of the applicants.

While the process of appeal by the respondents to the motion was proceeding, the beneficiary to the interim order, the 1st applicant and 2nd plaintiff in suit No. HM/103/2003, filed before the High court, Ikom, Form 48 of the Sheriff and Civil Process Act. It is a notice of consequences of disobedience to the order of court which was sent to the respondents including the Administrator General, Calabar, Cross River State. In the affidavit in support of the application; see pages 159 – 173 of the record of proceedings, the applicant Chukwuma Chukwuogor deposed as to the existence of the interim order issued by the court and that despite the order, the respondents who are now appellants went on to the land in dispute, and collected rents from diverse people in contempt of the order made by the court in suit No. HM/103/2003. Meanwhile, letters of administration to manage the said estate subject of the litigation was granted to the defendants/appellants. The motion on notice in the said suit HM/103/2003 was listed for hearing at the resumed hearing before the Hon. Justice M. O. Eneji on 1/7/03. The said court found merit in the motion on notice and granted the interlocutory order.

In the matter to show cause on 13/8/03, the applications were taken before the learned trial Judge for determination. The matters were the application for committal of the respondents under Form 48, for parties to obey the order of court issued on 4/6/03; the prayer was for an order for a stay of execution of the order of court previously issued. The counsel for the respondents asked the court to hear first the application to stay the order of the court while the applicant submitted that the application for committal of the respondents should be taken first, in the event of such conflict the court adjourned the hearing of the motion for committal to 12/11/03. The respondents who are also applicants for a stay of proceedings were dissatisfied with the ruling of the court. They lodged yet another appeal of two grounds with copious particulars.

The respondents/appellants filed their brief in the latest appeal on 15/10/04. The appellants formulated one issue which read thus-