Emeka Njokanma & Anor. V. Patricia Uyana (2006)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

By a writ of summons filed before the Asaba High Court on the 29/9/2004 the Respondent as Plaintiff claimed against the Defendants now Appellants the following reliefs;

1. A declaration that by virtue of Plaintiff’s marriage to late Mr. P. I. Uyana under the Marriage Act, the Plaintiff is a beneficiary to the Estate of Late Mr. P.I. Uyana and the Plaintiff has sufficient interest in the Estate of Late P. I. Uyana.

2. A declaration that the Defendant’s attempts to forcefully evict the Plaintiff from No.3, Shangotola Close, Asaba and/or take over the administration of the Estate of late P.I. Uyana, is illegal, unlawful and oppressive.

3. An order of perpetual injunction restraining the Defendants, their agents, privies, servants and thugs from further interfering with, or disturbing the Plaintiff’s possession of No.3, Shangotola Close, Asaba.

4. An order directing the defendants to account for any rent forcefully collected from the tenants of No.3, Shangotola Close, Asaba and directing the Defendants to return all personal properties of Late P. I. Uyana, removed by the Defendants to an unknown destination.

5. The sum of N50,000,000 (Fifty Million Naira) being damages for trespass.

On the same day 2/9/2004 the Respondent/Plaintiff filed before the same court an Ex-parte application whereby he prayed for this relief;

An order of interim injunction restraining the Defendants/Respondents, their Agents, Privies, Assigns, Servants and thugs from further trespassing into the Plaintiff/Applicant’s Matrimonial Home situate at No.3, Shangotola Close, Asaba or disturbing the Plaintiff/Applicant’s possession of all that property situate at No.3, Shangotola Close, Asaba pending the determination of the Motion on Notice.

The motion was heard and moved on the same day 2/9/2004 before Justice G. B. Briki – Okolosi of the Asaba High Court 4 by counsel to the Plaintiff E. O. Oghenejakpor and granted and the following orders made;

1. An Order of interim, injunction is hereby ordered to issue restraining the Defendants, their Agents, Privies, Assigns Servants and thugs from further trespassing into the Plaintiff/Applicant’s matrimonial home situate at NO.3, Shangotola Close, Asaba or disturbing the Plaintiff/Applicant’s possession of all that property situate at No.3, Shangotola Close Asaba pending the hearing and determination of the substantive suit.

2. The Plaintiff/Applicant is hereby ordered to enter an undertaking to pay damages in the Registry of this Court within 7 days from today if this order turns out to be frivolous.

3. The return day for the hearing of the Motion on Notice shall be 15/10/2004.

On being served with the writ of summons and the above enrolled order the Defendant felt aggrieved and appealed to this Court on this ground of appeal; Ground of Appeal.

ERROR IN LAW:-

The learned trial Judge erred in law in granting the interim order of injunction pending the determination of the substantive suit without putting the Appellant on notice.

PARTICULARS OF ERROR

(i) The interim order of injunction impinged on Appellants Constitutional right to fair hearing as it was tied to the determination of the substantive suit.

(ii) The learned trial judge lacked the jurisdiction to grant the interim order of injunction pending the determination of the substantive suit without allowing the Appellants to ventilate their possession vis-a-vis the said reliefs.

(iii) The said interim order of injunction amount to a complete abuse of the judicial process.

ERROR IN LAW

(i) By the tenor of the order in question, the learned trial Judge has adjudged the Appellants trespassers which amount to a prejudgment of the issues to be agitated at the substantive suit.

(ii) The said interim order of injunction far exceeded the legal scope of an injunction which is just a mere maintenance of the status quo.

(iii) The interim order of injunction has severely undermined the Appellants, right to have their position judicially and judiciously considered.

Both parties filed and exchanged their respective briefs of argument.

In his brief the Appellant identified this issue;

“Whether the Lower Court was right in granting the interim order or injunction against the Appellants.”

The Respondent in his brief which was deemed filed on the 7/6/2005 by the leave of this court adopted the sole issue identified by the Appellants for the determination of the appeal.

The Respondent, however, sought to show in his brief that the Appellant had abandoned in his argument the issue formulated and rather based his argument on the grounds on appeal and pointed out that the appeal is incompetent and should be struck out.

I must however, point out that a Respondent who wishes to raise an objection as to the competency of an appeal must come properly before this court to be heard. See Order 3 Rule 15(1) (3)Court of Appeal Rules 2002 which provides;

“15(1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within the same time.

(3) If the Respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.

In the instant case there is non compliance of the above provisions by the Respondent in this appeal. He has not filed a notice of preliminary objection he can therefore not be heard raising an objection on the competency of the appeal. In any case the object of a ground of appeal is to put the other party on notice of the nature of the complaint of the Appellant against the decision he is appealing against. Where the complaint is clear and unambiguous and does not violate any rule of court, then such a ground is competent.

See Aderounmu Vs. Olowu 2000 4 NWLR (Part 652) 253;

Hambe Vs. Hneze 200 4 NWLR (Part 703) 372.

In the instant case the ground of appeal is clear an unambiguous and the issue formulated is based on the said complaint.

The objection sought to be raised by the Respondent is hereby disregarded.

In his brief the Appellants submitted on the sole issue that the interim relief granted far exceeded the prayer sought, for it was predicted on relief (C) in the writ of summons which amounted to the prejudgment of the substantive issues by the learned trial judge in an ex-parte interlocutory application even before the Appellants were heard. That the interim relief granted is on all fours with relief (C) of the Respondent and by thus deciding, the Lower Court had prejudged the Appellant as trespassers unheard, even before the main case was heard and determined.

He relies on Thomas A Edison Limited Vs. Bullock 1912 15 CLR 679; KOTOYE VS. CBN 1989 1 NWLR (Part 98) 419;

Engineer Anayo B. Onwuegbu Vs. Alhaji Abubaka Ibrahim 1997 3 NWLR (Part 491)110; Agba Vs. BHI Holdings Ltd 1998 1 NWLR (Part 535) 669; Heywood & Another Vs. V.B.D.C. LTD 1963 1 WLR 975; Ghani & Others Vs. Jones 1969 3 All ELR 720 and Odumeru & others Vs. Adenuga & Others 2000 4 NWLR (Part 652) 224 in urging us to hold that the lower court was wrong to have granted a substantive relief in an interim application without hearing the Appellants, and prayed that the interim order be declared incompetent and a nullity and urged us to set it aside and remit the case for retrial before another judge.

The Respondent in reply contends that the trial court had not prejudged the Appellants as trespassers, that the court merely granted the ex-parte relief sought but which was clearly understood by all the parties to be of a temporary nature pending the determination of the motion on notice that the inclusion of substantive suit, instead of ‘motion on notice’ as contained in the relief granted by the lower court was a slip or error, that the intendment of the order being understood by all, the slip or error can be corrected by the appellate court. The Respondent urged us to dismiss the appeal and allow the parties to proceed with the suit before the lower court.

It is relevant at this stage to state the facts giving rise to this appeal.

The Respondent is a widow formerly married under the Marriage Act to one P. I. Uyana who died intestate on 3rd July, 2004.

The marriage was not blessed with a child. Late P. I. Uyana a member of Jehovah’s witnesses was the owner of a building NO.3, Shangotola close Asaba, where he resides with his wife and other tenants.

On his death, the Appellants as his ralatives went into the house, took away his personal effects and locked his bedroom. The Respondent who was asked to perform traditional burial rites on her husband informed his family through a counsel that she could not do so. In a reply to the letter by her counsel the family through another counsel allowed her to give her husband a Christian burial. After the burial the Appellants with others went into the property, took away the Respondent’s personal property, locked up the matrimonial apartment and sent her into the street. The Respondent went to the Police who intervened collected back her personal effects and restored her possession to the house.

She then instituted this action against the Appellants by way of writ of summons which was filed on the 2/9/2004. She at the same time sought for ex-parte injunctive interim reliefs which was heard and granted on the same 2/9/2004.

On being served with the writ of summons and the ex-parte interim order which was granted pending the determination of the substantive suit, the Appellant appealed to this court.

The Supreme Court in Leedo Vs. Bank of the North 1998 7 SCNJ 328 at 352 – 353 Per Ogundare JSC (of blessed memory) noted with appoval-a drawn up distinction between motion on notice and motion ex-parte and when they can be applied-a holden of Mohammed JCA (as he then was) in Bayero Vs. Federal Mortgage Bank of Nigeria Ltd. & Another 1998 2 NWLR 509 at 529 – 530 where he said;

“Motions generally are of two types; Motion on Notice and Ex-parte Motion. A motion is on notice where the applicant has put on notice or awareness the attention of the other party or parties involved of the existence of the motion an ex-parte motion is one in which the applicant for some cogent reasons, cannot put the other party or parties on notice or awareness of its existance. Both are acceptable in law. The general practice, however is that motions are filed in court on notice. Ex-parte motions are filed but sparingly considered by the court in extreme or special circumstances. The decision whether an application should be brought ex-parte or on notice is one to be considered in the light of the prevailing circumstances and not to be based on the dictates of the applicant’s or the judge’s whims.”

An application ex-parte could be made in two circumstances;

(i) When from the nature of the application, the interest of the adverse party will not be affected.

(ii) When time is the essence of the application and

In these two situations a court will be right in exercising its discretion in granting a motion ex-parte. But where the motion brought before the court will affect the interest of the adverse party, a court of law should insist and order that the adverse party be put on notice these can be done in either of two ways:-

(i) The court orders that the application ex-parte be served on the adverse party which automatically makes it a motion on notice; or

(ii) The applicant files a separate motion on notice.”

See also Kotoye Vs. CBN & Others 1989 1 NWLR (Part 98) 419; 1989 SCNJ 31 Per Nnaemeka-Agu at 440 where he said; “I think it is correct to say that ex-parte in relation to injunctions is properly used in contradistinction to a motion on notice and both expression, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a non-permanent injunction may bring the application ex-parte, that is without notice to the other side as is appropriate. By their nature, injunctions on ex-parte applications can only be properly interim in nature. They are made without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the Respondent can be put on notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for case of real urgency. The emphasis is on real.”

See also Sabru Nig. Ltd Vs. Jezco Nig. Ltd. 2000 8 NWLR 149;

Lafferi Nig. Ltd Vs. NAL Merchant Bank PLC 2002 1 NWLR (Part 748) 333.

From the above the basis for the granting of an ex-parte order or injunction is the perceived urgency in the circumstances of the case which if not granted at the time will cause real hardship to the applicant. The granting of the order in such circumstance will preserve the res or maintain the status quo pending the time the other side is put on notice. Where the situation or the circumstances of the case do not show the perceived urgency of the applicant then it would be safer not to grant the order sought, rather the other party should be put on notice.

In the instant case the writ of summons and the motion ex-parte were all filed at the same time on the same date 2/9/2004. There was no motion on notice in the records filed before this court the presumption therefore is that it was not filed. The application ex-parte was heard and granted on the same 2/9/2004. The enrolled order and the writ of summons were served on the Appellants at a latter date, the presumption is that the Appellant was not even aware of the pending case against him at the time the application was granted.

The averment in paragraph 2 and 4 of affidavit of urgency in support of the ex-parte application sought to show that there was real urgency for the court to hear the application as a result of the Appellants’ threat, intimidation and harassment to the applicant.

Paragraph 3, however, averred that the Police were then guarding and protecting the applicant.

The said paragraphs are in effect saying that at the time the application was filed the applicant was under the protection of the Police from the threats intimidation and harassment of the Appellants. The perceived urgency is therefore absent, as there would have been sufficient time to put the Appellants on notice.

Another question one needs ask at this stage is, was the court competent at that time to grant the prayers sought, the Appellants having not been served with the writ of summons in the matter?

In Madukolu Vs. Nkemdilim 1962 ALL NLR 581 at 589 – 590 a court is said to be competent when

“(1) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceeding are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.”

There is in this case non compliance with the third provision above. The mere filing of a case before a court does not confer jurisdiction on a court unless and until the adverse party is served and he becomes aware of the pendency of the case filed against him. Failure to so serve him is fundamental and goes to the competence of the court to adjudicate on the matter. See Skenconsult (Nig.) Ltd Vs. Ukey 1981 1 SC 6.

By virtue of the provision of Order 8 Rule 11 of the High Court Civil Procedure rules of the defunct Bendel State applicable to Delta State, any party affected by an ex-parte order may either within seven days on being served with it or within such further time as the court shall allow, apply to the court to either vary or discharge it; on notice to the party obtaining the order either refuse to vary or discharge it, or may vary or discharge it, with or without imposing terms as to costs.

What the above in effect means is that an ex-parte order should not normally last for more than seven days.

The ex-parte order made by the court below on 2/9/2004 for ease of reference is reproduced hereunder.

“An order of interim injunction is hereby ordered to issue restraining the Defendants, their agents, privies, assigns, servants and thugs from further trespassing into the Plaintiff’s/Applicant’s matrimonial home situate at NO.3 Shangotola Close, Asaba or disturbing the Plaintiffs/Applicants possession of all that property situate at No. 3 Shangotola Close, Asaba pending the hearing and determination of the substantive suit. (underlining mine)

2. The plaintiff/applicant is hereby ordered to enter an undertaking to pay damages in the registry of this court within 7 days from today if this order turns out to be frivolous.

3. The return day for hearing of the Motion on Notice shall be 15/10/2004.”

The return date here for the hearing of the motion of notice as per paragraph 3 of the order is 15/10/2004 a clear infringement of the provision of Order 8 Rule 11 (supra), since there was no motion on notice filed recourse to paragraph 1 of the order would be as to the intendment of the lower court that the order would be pending will the hearing and determination of the substantive suit.

Another clear infringement of the said rules. The contention by the Respondent that that was not the intendment of the trial court but rather a slip cannot hold water. I believe the learned trial judge intended that the order should subsist until the hearing and the determination of the substantive suit.

This will in effect render the order a nullity for no ex-parte order should be made to last for more than a very short period particularly so as in this matter where the other party was not put on notice of the pending case against him. I am more disposed to upholding the submission of learned counsel for the Appellant that the interim order which is to last till the hearing and the determination of the substantive suit went beyond the bounds of an interim relief.

On the authority of decided cases ie. Kotoye Vs. CBN (supra) Chief Land Officer Vs. Alor 1991 4 NWLR (Part 187) 617 an interim order should not last or ever. It should be limited to a very short period and in this courts should ensure that such orders are not used against an adverse party indefinitely particularly so where the order was made without notice to the adverse party.

Relief (3) in the writ of summons reproduced hereunder;

“(3) An order of perpetual injunction restraining the Defendant, their agents, privies, servants and things from further interfering with, or disturbing the plaintiffs possession of No.3 Shangotola Close, Asaba.”

To my way of understaing is on all fours with the interim relief (earlier reproduced in this judgment) granted by the lower court. In effect the main issue in the substantive matter had been determined at an interlocutory stage, without the adverse party having the benefit of being heard by the court. The order of injunction made ex-parte had determined the substantive issue.

It is trite that an order of injunction obtained ex-parte which by its nature is absolute and final offends the doctrine of audi alteram partem. Here as submitted by the Appellant in his brief, the Appellant had been prejudged at an interlocutory stage without his being heard.

For all I have been saying, the lower court was incompetent when it made the interim order as the Appellants had not been then served with the writ of summons. The lower court had also breached the Appellants’ right to fair hearing when it prejudged the substantive issue at an interlocutory stage without affording him the chance of being heard. Ordering that the interim relief should last till the determination of the substantive suit breaches the provisions of Order 8 Rule 11 of the applicable High Court Rules of Delta State and renders same a nullity which is liable to be set aside.

In the circumstance, I find merit in this appeal and hereby allow it.

I set aside the Order made by Briki-Okolosi, J of Asaba High Court Delta State on the 2/9/2004. I remit the matter to the Chief Judge of Delta State High Court for assignment to another judge of the High Court other than Briki-Okolosi, J.

Costs assessed at N10,000.00 is hereby awarded to the Appellants.

Other Citations: (2006)LCN/1870(CA)