Chief Chukwuma Onuzulike & Ors V. His Royal Highness C.o. Nwokedi Utoko Iv, (Igwe of Achalla) (1988)

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UWAIFO, J.C.A. 

The circumstances in which an interim order sought upon an ex-parte application may be granted have not in recent times in this country,in many cases, been fully taken into consideration in judicially exercising the discretion in respect thereof. There seems to be a growing feeling that the salutary purpose of that remedy intended for deserving emergency is being lost sight of, and in some situations, abused. The provisions of Order 35 rule 11 of the High Court Rules (Cap 61) Laws of Eastern Nigeria 1963 applicable in Anambra State appear sometimes to have been misconceived and consequently applied out of context of the entire Rules for obtaining interim injunction as if it is an acceptable alternative to the established principles of fair hearing whereby the other party is given an opportunity to contest the applicant’s prayer for such injunction.

The plaintiff/respondent is the traditional ruler of Achalla Town in Awka. He seems to have fallen out with some of his people. He considers that the members of the executive of a body known as Achalla Improvement Union, 25 in number, who he named as the defendants in this case are responsible for his predicament.

On 18th December,1987,the plaintiff filed an action at the Awka High Court in Suit No. AA/145/87 against the said persons as defendants, claiming the following reliefs:

“1. A declaration that the imposition of a levy/tax of N50, 000.00 (Fifty Thousand Naira) contained in the Defendants’ letter of 19/4/87 under pain of ostracism on the plaintiff, who is the traditional Ruler and recognised Chief of Achalla Town in Awka Local Government Area, a custodian of the native law and custom of the said Town,is against the native law and custom,oppressive, vindictive,illegal and unconstitutional and void.

2. A declaration that the order of the Defendants of Achalla Town to boycott the Traditional/Christian rites relating to the funeral of the plaintiff’s mother, Madam Umerie Nwokedi on 14/11/87 is illegal, vindictive and wrongful.
3. A declaration that the sounding of the traditional gong/drum at the instructions and or directives of the Defendants without the knowledge, consent and authority of the plaintiff, as the traditional ruler of Achalla Town is against the native law and custom of the said Town and disruptive of the peace and good government of Achalla Town.

4.An injunction restraining the Defendants by themselves,their servants and agents from imposing or continuing to impose the said levy,the said order of ostracism and sounding the gong/drum.”

On 23rd December, 1987 the plaintiff filed a motion ex-parte asking for an order of “Interim injunction restraining the 1st to 25th Defendants/Respondents by themselves, their servants, agents and privies from holding and/or conducting the Achalla Town Union Meeting scheduled for 26th December, 1987, or any other subsequent date and disruptive of the peace and good government of Achalla Town, pending the hearing of the Interlocutory application.” It has been said, and this is common ground, that the application, at the request of counsel for the plaintiff, was amended to read that the order should be made to last “pending the hearing of the substantive suit.”

It will be observed outright that the interim order sought does not seem to have been occasioned by any of the four reliefs in the claim and a careful perusal shows that none of the reliefs seeks to restrain by permanent injunction the functioning of the said Achalla Improvement Union. It is therefore a matter of real concern how an interim injunction could have been sought to restrain their proposed meeting. Besides, the plaintiff not being a member of the Union and not being a law enforcement agent could hardly be heard to want to restrain the holding simpliciter of the meeting of that Union, and/or even taking certain decisions thereat. The defendants have their right enshrined in Section 37 of the Constitution to associate and assemble freely for the protection of their social interests.

However, the motion ex-parte was heard by Obiesie, J., that same day whereupon he made an order in his record as follows:

“Application is hereby granted pending the hearing of the substantive suit in AA/145/87. All relevant documents should be served on defendants/respondents within a period of two weeks. The said respondents are at liberty to apply to set same aside within two weeks from the date of service of the Order of this court.”

The defendants subsequently moved that the interim order be discharged but in a ruling given on 25th February, 1988 the learned Judge declined to do so. Instead, he varied the order to continue in force “pending the hearing of the interlocutory application.” Counsel for the plaintiff has conceded that that variation was not asked for and was therefore a nullity. That meant therefore that the order in its original terms remained.

The defendants in their four grounds of appeal against the ex-parte interim order question the validity of the order, the propriety of the subsequent variation made to the order and the failure to discharge the said order. I do not need to set the grounds of appeal out but I shall reproduce the issues for determination raised in the Appellants’ Brief. They read as follows:

1. Whether it was proper,upon an ex-parte application, for the trial court to have made an interim order of injunction on the 23rd December, 1987, to last till the final determination of the substantive suit.
2. Whether having made the said order of 23rd December, 1987, it was proper for the court to vary the same order on 25th February, 1988, the said having been drawn up and already made effective; and whether the court has the inherent jurisdiction to do so.
3. Whether the learned trial Judge can make the varied order of court of the 25th of February, 1988, to be contingent upon a non-existing Interlocutory Application.
4. Whether the court’s order of the 23rd of December, 1987 is constitutionally valid in law. If not, can it be subsequently made to be so by variation or otherwise howsoever.

The plaintiff as respondent in his Respondent’s Brief of Argument also raised three relevant issues for determination, the last of which being, in my view, all-embracing. They read:

1. Whether the order made by the learned Trial Judge on the 23rd day of December, 1987 was in substance a final order and if so what is the effect in law?
2. Whether the purported variation order made by the learned trial Judge on the 25th of February, 1988 in any way affected the validity of the earlier order made on the 23rd of December, 1987″
3. Whether considering the peculiar circumstances and all the relevant facts of this case the order granted by the Lower Court on the 23rd of December, 1987 should be discharged?

The Judge relied on Order 35 rule 11 of the High Court Rules to entertain the ex-parte motion. This of course he is entitled and empowered to do.