Co-operative and Commerce Bank (Nigeria) Plc. V. Ogochukwu Okpala & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A. 

By originating summons taken out by the plaintiff/appellant it prayed the court for an order compelling the 2nd defendant/respondent not to release 1st defendant/respondent’s vehicles with registration numbers BD 1750 BC, a Mercedes Benz 911 truck and Peugeot Pick Up Van AN353 Y, to him or to anyone until the determination of the proceedings in the summons. Additionally, the appellant sought an order of the court to sell the two vehicles in reduction of 1st respondent’s indebtedness to the appellant. By an ex-parte order, the appellant succeeded in placing the vehicles in the custody of the 2nd respondent. During the pendency of the suit, the 1st respondent successfully by a motion on notice, obtained an order releasing the Peugeot vehicle to him upon signing a bond. All these determinations were made by Edozie, J. who also adjourned the hearing of the originating summons to 10/10/94.

Nevertheless, by a motion on notice dated 6/9/95, 1st respondent prayed the court as follows:

“(a) Interlocutory Injunction restraining the plaintiff from selling his Peugeot Pick Up Van No. AN 353 Y illegally seized or removed from his premises.

(b) Interlocutory Injunction restraining the plaintiff from further seizure or interference with the first defendant’s goods and properties.

(c) An order on the plaintiff to return the Pick Up Van No. AN 353 Y to the first defendant.

(d) An order restraining the plaintiff (sic) “from further molestation of the workers of the first defendant.”

The motion was fixed for hearing on 12/9/95 before the vacation Judge, Agbo J. On receipt of hearing notice of the said motion, appellant’s learned counsel, Mr. E.C. Ibe wrote a letter dated 12/9/95 drawing the court’s attention that the substantive case has been adjourned to 10/10/95 by the trial judge and bearing in mind that the motion was sought to be heard on 12/9/95 – during vacation period – it was not convenient for him to attend the sitting before the Vacation Judge and accordingly sought adjournment of the motion to 10/10/95, being the date the substantive suit had been adjourned. Appellant’s letter for adjournment was endorsed to Mr. A.C. Onwu, learned 1st respondent’s counsel. When hearing commenced before the trial Vacation Judge, on 12/9/95, the letter by appellant’s counsel was duly brought to his notice and the said letter was admitted in evidence and marked Exhibit A, and thereafter Mr. A.C. Onwu of counsel moved his motion in terms of the motion paper. The learned trial judge immediately after the motion was moved granted the respondent the relief sought i.e., an order that appellant should return the Peugeot Pick-Up Van registration No. AN 353 Y, the subject of an earlier order made by Edozie J on 19/7/94 forthwith and awarded N5,000.00 costs against the appellant. This appeal is against this ruling of the Vacation Judge.

Appellant’s learned counsel postulated the following issues for determination, namely-

“(i) Was the Notice of Motion of an urgent nature to justify its being heard by a Vacation Judge before whom the substantive suit No. E/289/94 was not pending more so when the substantive suit had been adjourned by a brother Judge to a date 10/10/95 outside the vacation period?

(ii) Was it proper for the learned vacation Judge to grant an injunction to a defendant in a suit in which the defendant has no counter claim?

(iii) Was the learned trial vacation Judge right to proceed to hearing the Motion for an Interlocutory Injunction without firstly disposing of the application by the appellant for an adjournment of that Motion to a future date.

(iv) Was it a proper exercise of judicial discretion to award N5,000.00 costs to a successful applicant in a motion for an interlocutory injunction when the motion was neither opposed nor proceedings thereon delayed?”

For the 1st respondent, the following issues were identified by the learned counsel, to wit,