Daniel I. Ushie V. Asuquo Asuquo Edit & Anor (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

The Appellant initiated an action against the Defendants at the High Court of Cross River State, sitting at Calabar by way of a Writ of Summons dated 19/7/06 and filed on the same date. Three reliefs were sought and consequent upon that, the Plaintiff filed a Motion on Notice, on that same date, praying the Court for an order of interlocutory injunction against the Defendants.

It must be pointed out that there is no disclosure on the record of appeal before us that pleadings between the parties had been filed and exchanged.

So, it clear on the record that the Defendants have not filed their Statement of Defence let alone counter-claiming for a declaration of title over the said piece of parcel of land situated in Ekorinim Town, Calabar. They, also, did not commence a separate action for a declaration of title and an order of perpetent injunction against the Plaintiff in respect of the same parcel of land. Nevertheless, without any counter-claim or a separate suit which was consolidated with the Plaintiff’s action, the Defendants, on the 21st July, 2006, filed a Motion on Notice in the same Suit No. HC/193/2006 instituted by the Plaintiff and then prayed for an order of interlocutory injunction restraining the Plaintiff, his agents, servants and privies from further act of trespass by

continuity to building on the Defendants land situate at Ekorinim and shown in Plan No. IJCR 1159 prepared by Surveyor T. Johnson pending the hearing of the substantive matter.

On being served with the said Motion, the Appellant, via his Counsel, filed a Notice of Preliminary Objection on the 3rd July, 2006 on the ground that the lower Court lacked the jurisdiction to entertain the said Motion on Notice, in that it was incompetent and constituted an abuse of Court process.

Thereafter, on the 31st August, 2006, the learned trial Judge was addressed by the respective Counsel to the parties on the Preliminary Objection raised by the Plaintiff to the hearing of the Defendants’ Motion on Notice for interlocutory injunction.

The record of appeal, at p. 41, last paragraph, shows that at the conclusion of the address, learned Counsel for the Appellant, T. Udo Esq., conceded to both motions for interlocutory injunction filed by the parties respectively being consolidated. Later, in the same proceedings of that date, learned Counsel for the Defendants urged upon the Court to make an interim order of injunction restraining both parties from entering the land.

The learned trial Judge in his wisdom and in the exercise of his discretion made the order sought, ie, an order of interim injunction restraining both parties from engaging in any activities on the said land.

Being irked and in total disagreement with the orders made by the learned trial Judge for the said 3rd August, 2006, the Appellant file his Notice of Appeal that was pivoted on three grounds. Pursuant to that, the Appellant filed his Brief of Argument on 9/8/07.

As a result, the Respondents filed a document captioned, Preliminary Objection which, presumably, is their Notice of Preliminary Objection, and, their Respondent’s Brief of Argument on 8/10/07, in which was also proffered the Respondents’ arguments in respect of the preliminary objection. The following three issues were presented by the Appellant’s Counsel in the Appellant’s Brief for consideration;

“(1) Whether it is not wrong for the lower Court without any materials placed before it for consideration of the grant of interim injunction to suo motu order interim injunction against both parties in the case pending the determination of the two motions on Notice filed by both parties without calling on the parties or their Counsel to address it knowing that such an issue as interim injunction would affect the interest of the parties.

(2) Whether the lower Court in ordering consolidation of the two motions filed by the plaintiff (now Appellant) and the Defendants (now Respondents) for interlocutory injunction exercised its discretion judicially and judiciously, when there was before it for consideration a preliminary objection to the jurisdiction of the Court to entertain the motion brought before it by the Defendants for interlocutory injunction.

(3) Whether the lower Court in the circumstances of the preliminary objection to its jurisdiction to entertain the motion of 29/7/2007 filed by the Defendants for interlocutory injunction, did not lack jurisdiction to: