Chief Benson Ajonuma & Ors V. Sebastine Nwosu & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against interlocutory Ruling of the High Court of Imo State in suit No. HON/8/2008, delivered on 10/11/08 by Hon. Justice T.N. Nzeukwu, wherein his lordship dismissed a motion for interlocutory injunction, filed by the plaintiff (Appellant herein) on 13/3/2008.

Appellants’ contention in this appeal is that they never moved or argued the said motion for interlocutory injunction, which the trial Court ruled on, and dismissed. They argued that the motion for injunction as well as a motion for extension of time to file Plaintiffs’ pleadings and plan, were pending at the lower Court, at the time the Defendants (Respondents herein) filed their statement of defence and plan in the case.

There was argument as to whether the statement of defence and plan filed by the Respondents were proper, since the Appellants were yet to file their statement of claim and plan. It was that argument, hotly, taken by Counsel on both sides on 22/9/08, that the Court reserved for ruling, which it delivered on 10/11/2008, holding that the statement of defence was wrongly filed; but that the Court rather headed the Ruling as one on the Motion for Interlocutory Injunction, and thereupon dismissed the plaintiffs’ motion for interlocutory injunction, which they said was still pending and never moved.

That is the real substance of this appeal, filed on 11/11/2008 (a day after the Ruling) to challenge the dismissal of the motion for interlocutory injunction. See pages 88 to 90, of the Records of Appeal, where Appellants raised a lone ground of appeal; that the learned trial Judge erred in law by delivering a Ruling on the motion for Interlocutory Injunction, without the same being moved. They also filed a brief of arguments thereto on 6/2/2009, which was amended, with the leave of this Court, granted on 2/7/12. In the Brief, filed on 3/7/12, Appellants’ issue for determination was/is:

Was the lower Court right by dismissing the motion for interlocutory injunction which was not moved by the Plaintiffs/Appellants’ Counsel, who was not heard in oral argument and without adopting his written submission?

The Respondents filed their amended brief of argument on 12/7/12 and argued the appeal on the issue, whether the learned trial Court was right in dismissing the Appellants’ application for interlocutory injunction.

In their background facts, the Respondents said that the Appellants made it quite manifest at the Court below that they were primarily interested in obtaining an interlocutory judgment against them (Respondents) and so when the Appellants filed their writ of summons on 13/3/08, they also filed a motion for interlocutory injunction, instead of their statement of claim, and the motion for interlocutory injunction was supported by two written addresses; that they (Respondents) filed counter-affidavit and address to oppose the application for the injunction; that in the Counter affidavit, they pointed out that the identity of the land in dispute had not been disclosed, especially as the Appellants had not filed their statement of Claim; he said that the Appellants, thereafter, filed their statement of claim out of time, on 14/5/2008 and a motion for extension of time to regularize their said statement of claim; that the Appellants proceeded to file two additional affidavits in support of their motion for Interlocutory Injunction; that they (Respondents) too filed two counter affidavits against the said motion and also filed their statement of defence on 18/9/08, adopting that approach to get all their papers, in so that the Court could deal with all the interlocutory matters on the adjourned date of 22/9/08.

Arguing the appeal, on 24/9/14, Counsel for the Appellants’, Nnamdi Ibegbu, SAN, who settled the brief, (with him Obiora Nweze Esq), submitted that the situation here is indeed lack of hearing at all, or want of fair hearing, which touches on jurisdiction. He relied on the case of Wappah Vs Mourah (2006) 18 NWLR (pt.1010) 18 at 44; Lawal Vs Quadri (2004) 6 NWLR (pt. 868) 1 at 14; Otapo and Ors Vs Summ Onu & Ors (1987) 2 NWLR (pt. 58) 587 at 605; Newswatch Communications Ltd Vs Atta (2006) 17 NWLR (pt. 993) 144, though he argued that the last case is different from the principles which concern this appeal.

Counsel argued that considering an application for interlocutory injunction in another motion, without giving both Counsel opportunity to realize that the motion for injunction was being heard, was unfair, and had denied the parties fair hearing; that both parties were denied fair hearing; that the Appellants’ Counsel, in particular, would have sought opportunity to stress some points and cite authorities, if he knew the Court would consider the motion for interlocutory injunction.

He urged us to allow the appeal.

Counsel for the Respondents said the parties were accorded fair hearing; that on 22/9/08 the Appellants refused to move their motion for extension of time to file their statement of claim and plan, and rather insisted that the statement of defence and plan filed by the Respondents be struck out, for being filed when the Appellants’ pleadings had not been filed! Counsel for the Respondents said that the proceedings of 22/9/08,

“were therefore protracted unnecessarily in the bid of the Appellants to obtain a hearing on their motion for interlocutory injunction and prevent the Respondent from opposing that application on the basis of their own statement of defence and plan. In the Course of the dingdong, the motion for interlocutory injunction was virtually argued by both Counsel by multiple references made to the filed papers.

The learned trial Judge who had enormous patience with Counsel and who apparently had cause in the Course of the proceedings to peruse the papers filed by the parties ” then ended the proceedings” and adjourned the case for ruling on 10/11/08. (See page 3, paragraph 2.06 of the Amended Respondent’s Brief)