Goddy Okeke & Ors V. Chief Michael Ozo Okoli & Ors (1999)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the order contained in the ruling of the late Obiesie, J., delivered on 14th October, 1993. The Trial Judge dismissed an application to set aside an order of interim injunction made ex parte on 13th July, 1993 in favour of the Respondents at the High Court of Justice, Awka Judicial Division of Anambra State.
On 22nd July, 1993, the Respondents filed their claim, dated 21-7-93, at the Trial court and prayed as follows:-
“(a) A declaration that the Agulu Peoples Union, Nigeria is the only cultural organistion in Agulu Town which has the mandate of the People to run the affairs of Agulu Town.
(b) A perpetual injunction restraining the defendants by themselves, their servants, workmen and agents or otherwise howsoever from forming and launching another Union in Agulu Town to be known as and called Agulu Development Union.”
The Respondents filed their motion ex parte also dated 21-7-93, contemporaneously with their writ of summons on 22-7-93. They prayed that the Appellants be restrained from inaugurating and launching another Union in Agulu to be known as and called Agulu Development Union, or any other association that goes by whatever name, pending the determination of the motion on notice filed in the suit. On 23-7-93, the Trial court granted the application as prayed under its ‘inherent jurisdiction “The desired order was granted “pending the determination of the motion on notice fixed specifically for hearing on 29th July, 1993.
As the learned counsel for the Respondents was not in court on 29-7-93, the motion on notice could not be taken. The learned trial Judge then adjourned the motion to 16-9-93 for hearing, In the interim and specifically on 30-7-93, the Appellant filed their motion of the same praying for an order to discharge and/or vacate the interim order obtained ex- parte by the Respondents on the 23rd July, 1993.
On 16-9-93, both learned Senior Advocates made very plausible and alluring submissions at the hearing of the motion for discharge of the interim order made on 23-7-93. The learned trial Judge, in his ruling of 14-10-93, concluded same by saying ‘the application for setting aside the interim order made on the 23rd July, 1993 falls to the ground’: The trial Judge went ahead to award N1,000 costs in favour of the Respondents, against the Appellants.
The Appellants left dissatisfied and have ex-debito justitiae, appealed to this court. The notice of appeal complained about the whole ruling of the trial Judge. Eight grounds of appeal accompanied the said notice, I should state that the grounds of appeal appear rather prolix. It is also pertinent to state the reliefs sought from this court. They are follows:-
“(a) To quash the ruling of the Awka High Court.
(b) Dissolve the Interim injunction and,
(c) Order that the suit be transferred to be heard by another High Court Judge sitting in the Judicial Division.”
On 12-10-99, the appeal was heard. At the on-set, Mr. J.C. Okonkwo, SAN, applied that the name of the 1st Appellant – Dr. Felix Adi, be struck out on the ground that he has passed on to the great beyond. Mr. G.E. Ezeuko, SAN, for the Respondents had no objection. The name of the 1st Appellant – Dr. Felix Adi, was accordingly struck out as prayed. He is shown to be DECEASED in the list of appellants as stated above.
Mr. J.C. Okonkwo, SAN, for the appellants, adopted the Appellant’s brief dated 22-5-96 and filed on 24-5-96. He observed that nothing has happened to the motion on notice as well as the main suit up to 12-1-99. He indicated that there was no effort to move the motion. He urged that the appeal be allowed. He asked that the appellants be ‘untied’.
Mr. G.E. Ezeuko, SAN, for the Respondents, referred to the brief dated 3-3-98 filed with the leave of court. The Senior Counsel, in his usual candour and show of magnanimity, stated thus – “I concede that the appeal is right. No one is asking for the extension of the potency of the ex parte order.”
I completely agree with the senior counsel for the Respondents in the reasonable stand taken by him. This court will certainly not accede to one extra day’s extension of the potency of the ex parte order made by the Trial Judge on 23-7-93. At this juncture, I shall not say appeal allowed yet. I need to give my reasons anon.
Five live issues were formulated on pages 11-12 of the Appellant’s brief of argument. They read as follows:-
“(i) Whether the learned trial Judge was right in his refusal to discharge or vacate his earlier order of interim injunction obtained ex parte having regard to the circumstances of the said application. (ii) Whether the learned trial Judge was right in predicating his refusal to discharge the said interim ex parte order on a letter – Exhibit A written by an official of the Corporate Affairs Commission, Abuja,
(iii) Whether the learned trial Judge was right in allowing his order for interim injunction ex parte to remain alive for an indefinite period without setting down for hearing the motion for Interlocutory Injunction on which the interim order was said to hang, or the main suit itself.
(iv) Whether the learned trial Judge appropriately focused his mind on the right issues he had to consider in the application before him, and if not, the extent such error affected the conclusions he came to.
(v) Whether the learned trial Judge was right in awarding the cost of N1,000 against the Appellants as he did.”
Three issues were formulated on pages 2-3 of Respondent’s brief. They read as follows:-
“(1) Whether the respondents suppressed material facts or were guilty of any important mis statement in their application for ex parte injunction.
(2) Whether the respondents had any legal rights to protect.
(3) Whether the cost of N1,000 awarded by the learned trial Judge was violative of a proper exercise of judicial discretion.
On Appellant’s issue No 1, Mr. J.C. Okonkwo, SAN, submitted that the order of interim injunction obtained by the Respondents on 23-7-93 should not have been made in the first place. This is because the appellant’s Union to wit:
Agulu Development Union (ADU) had been registered at the Corporate Affairs Commission, Abuja on 13-5-93 and publicly inaugurated at the Agulu Town Hall on 4-7-93. The Senior Counsel observed that the Respondents said they were aware of ADU’s registration through the publication in the Nigerian Mirror of 2-8-93. This formed the gravamen of the submissions made on behalf of the Respondents in answer to the application for discharge of interim order. The Senior Counsel contended that the appellants were not obliged to advertise their existence or that they had arrived. And since they were aware on 2-8-93 that the appellant’s Union had been registered, the Respondent should not have put up a spirited opposition to the application for the discharge of the order of interim injunction on 16-9-93 as an order of injunction is not a remedy for an act which had already been carried out. He referred to Governor of Iwo State v. Anosike (1987) 4 NWLR (Pt.66) 663, John Holt Nigeria Ltd. v. Holt African Workers Union (1963) 1 All NLR 379; (1963) SCNLR 385: Uwegbe v. A.G, Bendel State (1985) 1 NWLR (Pt. 16) 303 at p. 309; A.G Anambra State v. Okafor (1992) 2 NWLR (Pt. 22-1) 396.
Learned Senior Counsel submitted that ab initio, the learned Trial Judge had nothing to restrain and the order should not have been made in the first instance. The trial Judge should not have had any difficulty in discharging the interim order of 23-7-93. Learned Counsel further submitted that application for an interim order postulates that applicants have a right, the violation of which they seek to protect. He referred to Ladunni v. Kukoyi (1972) 1 All NLR (Pt. 1) 133, The senior counsel opined that the Respondents belong to the unregistered Agulu Peoples Union. He queried as to what right they could have against the appellant’s registered Union to wit Agulu Development Union. He submitted that the trial Judge’s reliance on the constitution of Agulu Peoples Union was misconceived since such cannot operate to foreclose a citizen’s right to belong to any organization of his choice vide section 37 of the 1979 Constitution of the Federal Republic of Nigeria. He contended that the respondents have no locus standi.
The Senior Counsel further submitted that any misrepresentation or mis-statement of facts by an applicant for motion for an order of interim injunction would lead to the discharge of the order whenever discovered. It does not matter whether the mis-statement of facts was deliberately or innocently made. He referred to Kerron Injunctions, 6th Edition J.N, Pateson pages 660-661, Okechukwu v. Okechukwu (1989) 3 NWLR (Pt. 108) 234, Hatch v, Horsley (1835) 4 LJ ch, 160; Harbottle v. Pooley (1869) 20 L.T. 436: Boyce v. Gill (1891) 64 LT 824, Wimbledon Local Board v. Croydon Rural Sanitary Authority (1886) 3 Ch, D, -121; Dalglish v. Jarrie (1850) 20 LJCH -175, Carron Iron Co, v. Maclaren (1855) 5 HL Cas, 416. An injunction which is irregularly granted is liable to be discharged, See Re Johnstone ex parte Abrams (1884) 20 LT 184.
Mr. G.E EZEUKO, SAN, on Respondent’s issue 1 which is fairly akin to Appellant’s issue 1 submitted that the law as to the discharge of an order obtained on an ex parte application is clearly stated by Kay, J, in Republic of Peru v. Dreffus Brothers Co, (1886) 55 LT 802 at 803 to the effect that there should be no mis-statement on the part of an applicant. He also referred to Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 at pages 40 and 43; Okechukwu v. Okechukwu (supra).
Learned Senior Counsel contended that from the above authorities, no one can suppress or misrepresent what he is not aware of. As at 23-7-93, the Respondents, from their depositions, were not aware that appellant’s Union had been registered.
The law relating to ex parte application, as states by Kay, J. in Republic of Peru v. Drejfus Brothers Co. (supra) at p. 803, was reproduced at page 53 of the transcript record of appeal as follows:-
“I have always maintained, and I think it is most important to maintain most strictly, the rule that, in ex parte applications to this court. The utmost good faith must be observed. If there is an important mis statement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the orer at once, so as to impress on all persons who are suitors to this court the importance of dealing in good faith with the court when ex parte applications are made.”
The above pronouncement was well made. It has my approval. The blunt reality of the matter herein is that there was a mis-statement by the Respondents in their ex parte application dated 21-7-93 and filed on 22-7-93 as to the status of Appellant’s Union. It does not matter whether the mis statement was an innocent one. The Appellants’ Union, vide Exhibit ‘A’ had been registered by the Corporate Affairs Commission, Abuja on 13-5-93. The trial Court was mis-led by the Respondents to think that there was no registration of Appellant’s Union as at 23-7-93 when the interim injunction order was made. The Respondent tried to hide behind one finger by saying that they knew of the registration of Appellant’s Union on 2-8-93 through an advert/publication in the Nigerian Mirror. Even if it was so, why did they not tell the court on 16-9-93 when application for discharge of the interim order was taken? Why did they continue to press that the interim order should not be discharged? The trial Judge allows himself to be mis-led by the mis-statement of the Respondents. He should have frowned at the misstatement at least, on 16-9-93. Refer to Kadiri v. Olusoga (1956) Vol. 1 FSC 59, Ojukwu v. Lagos State Governor (supra) 39, Okechukwu v. Okechukwu (supra) 234, Boyce v. Gill.
I am of the firm view that based on the above, the interim injunction order ought not to have been made in the first instance. Since it was erroneously made based on Respondents’ mis statement, the order should have been discharged in the ruling of 14-10-93 without much ado.
That takes me to issue no 2 formulated on behalf of the appellants. The serious submission here is that the learned Trial Judge lacked the jurisdiction to consider the efficacy and legality of Exhibit ‘A’ the certificate of registration obtained pursuant to part C. of Companies and Allied Matters Act of 1990. Such a certificate can only be considered by the Federal High Court vide the combined effect of section 691(1) and 693 of the stated Act.
The Senior Counsel referred to S.7(1) Federal High Court Act, 1973, Constitution (Suspension and Modification) Decree No. 107 of 1993, section 230(1)(e) Akinbola & Sons v. Plisson Fisko Ltd (1986) 4 NWLR (Pt. 37) 621, Sken Consult v. Ukey (1981) 1 SC. 6, Company Law and Practice by Orojo 3rd Edition, page 23.
The Senior Counsel contended that the Certificate of Registration of the Appellant’s Union, to wit Exhibit ‘A’ was not just subject to recall by an official of the Corporate Affairs Commission, vide Exhibit ‘B’.
The submission of Mr. G.E. Ezeuko, SAN, for the Respondent is that Exhibit ‘A’ the certificate of registration of Appellants’ Union, dated 13-5-93, was obtained by fraud and could not form the foundation of any equitable relief as fraud vitiates everything both ecclesiastical and temporal. He observed that Exhibit ‘B’ erided Exhibit ‘A’ of legal potency.
It hardly needs any gainsaying that the trial Judge had no jurisdiction to enquire into the legality, potency or efficacy of Exhibit ‘A’, the Certificate of Registration issued to the Appellants’ Union on 13-5-93. By the combined effect of the provisions of sections 691(1) and 693 of the Companies and Allied Matters Act 1990, it is the Federal High Court that is imbued with jurisdiction in such matters. No one should be left in any doubt on the point.
The learned Trial Judge was in error to have pronounced on the legality, efficacy, or potency of Exhibit ‘A’. Even if he had jurisdiction to pronounce on Exhibit ‘A’, such was made at the wrong time of the proceedings. The trial Judge should not have deal a final devastating blow on the appellant’s case at the stage of an application to discharge interim injunction order as he did. The question is – what then remains to be determined in the main suit having written off Exhibit ‘A’ at the stage it was done? The answer is unfortunate-nothing more. Refer to Gomwalk v. Okwuosa (1996) 3 NWLR (Pt. 439) 681 at p. 689.
On issue No.3 Mr. J.C. Okonkwo, SAN, for the Appellants submitted that the general principle of law is to make the life span of an interim injunction obtained ex parte very short, usually for a few days. He referred to Okechukwu v. Okechukwu (supra) 234, Nze Peter Chike Ogbinamor v. Onyeson  (1994) ASNLR (vol.3) 191 at p. 194. It is a temporary order which the court may make in the most exceptional circumstances, such as in a moment of extreme urgency. Its aim is to preserve the status quo and the res pending the hearing of the application on notice for interlocutory injunction but definitely not pending the determination of the substantive suit. He referred to 7-Up Bottling Co. Abiola & Sons Ltd (1989) 4 NWLR (Pt.114) 229 at 239. Chief Land Officer and ors. v. Alor and ors. (1991) 4 NWLR (Pt. 187) 617, Eguannwense v. Amaghizemwen (1986) 5 NWLR (Pt. 41) 282, Orji v. Zaria Industires Ltd. (1992) 1 NWLR (Pt. 216) 124; Ogbonna v. National Union of Road Transport Workers (N.U.R.T.W.) Enugu Branch (1990) 3 NWLR (Pt. 141) 696.
It is interesting to note here the trial Judge’s stand point on the life span of an ex-parte order in Nze Peter Chika Ogbunmor v. Obidegwu C. Onyesoh and ors. (supra) at page 191. Therein, Obiesie, J. held that the life of an ex parte order ought to be very short. As well, he maintained that where one has obtained the order and failed to move the motion on notice, it will be concluded that his action has not been in good faith. He referred to Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419, N. Udogu v. B. Okeke and ors (1966-69) E.N.L.R 123. Ogbonna v. NURTW (supra) Onuzulike v. Nwokedi (1989) 2 NWLR (Pt. 102) 229. He went on to say at page 194 as follows:-
”The court will not allow such an order to last indefinitely. It is the court of Justice that had its genesis partly from the court of Equity and he who seeks equity must come with clean hands”
The above pronouncement is a near master piece in crudity. No. doubt, it was well pronounced. But surprisingly, the same Judge failed to pronounce in a similar fashion in this matter. He closed his eyes to the pronouncement or may be he preferred to look at the other direction this time around. The law relating to order of interim injunction and injunction generally is now well settled. See in particular Kotoye v. C.B.N. (supra) page 419. I think it is only a person who decides to close his eyes while walking that will miss the road.
The learned trial Judge herein, through self imposed mis-trial, missed the road. He failed to discharge the wrongly ordered interim injunction made by him. Such led to utter miscarriage of justice. After refusing to discharge the interim injunction order made on 23-7-93, the motion on notice remains unheard and the main suit, as well, remains in abeyance. What an irony of fate for the appellants.
I feel constrained to express it here that certainty and consistency in the construction and application of our law should be adhered to more especially in areas where the law is well settled. In Adis Ababa and v. D.S. Adeyemi (1976) 12 SC 51 at pages 58-59, Udo Udoma J.S.C. pronounced as follows:-
“On the other hand, realizing as we must do, that in this imperfect world of mortal beings, certainty is but an illusion and non the less, that in law there ought to be not only an element of certainty but also of consistency of construction and application.”
As a follow up, all I need to add is that a Judge should be consistent in applying the law more especially when a point is settled. And above all, he should be consistent within his own frame of mind and being. He must comply with the principle of stare decisis. Refer to Adesokon v. Adetunji (1994) 5 NWLR (Pt. 345) 540 at pages 577-578 where Onu, J.S.C. pronounced as follows:-
“Stare decisis et non quela movera – means literally, ‘To stand by what has been decided and not to disturb and unsettle things which are established. Stare decisis thus means to abide by former precedents where the same points come again in litigation. Stare decisis presupposes that the law has been solemnly declared and determined in the former cases’.
It thus precludes the judge of subordinate courts from changing what has been determined. In other words, they should keep the scale of justice even and steady and not liable to waiver with every Judge’s opinion. See also Clement v. Iwuanyanwu (1989) 3 NWLR (Pt.107) 39…”
I now move to issue (iv) which appears to be a follow up of Appellant’s issue (ii) already considered. It appears hair-splitting in the main. It is no longer necessary to repeal my views on the Trial Judge’s consideration of Exhibit ‘A’ – the Certificate of Registration of the Appellant’s Union; or the suppression/misstatement of material facts by the Respondents in obtaining the interim injunction order. Such may amount to an over-kill. I therefore keep my peace.
Appellant’s issue (v) is to all intent and purposes the same as Respondent’s issue (3). It is whether the cost of N1,000 awarded by the learned trial Judge was violative of a proper exercise of judicial discretion.
Mr. J.C. Okonkwo, SAN, for the Appellants observed that award of costs follows events. He contended that since the Respondents ought to fail in their objection to the discharge of the order of interim injunction, they were not entitled to costs at the trial court. He urged that the costs awarded against the Appellants be set aside.
Mr. G.E. Ezeuko, SAN, for the Respondents observed that cost follows the event and such is within the discretion of the court. The discretion must be exercised judicially and judiciously as well. It must be exercised in accordance with common sense. He referred to Calabar East Cooperative Thrift and Credit Society Ltd v. Etim Emmanuel Ikot (1993) 8 NWLR (Pt. 311) 324 at pages 329 and 336. Haeco Limited v. S.M. Daps Brown (1973) 4 SC 149 at p. 154.
The costs awarded by the trial Judge has not been shown to be arbitrary or out of tune with the reality of the situation or indeed vindictive. It has not been shown that the trial Judge did not exercise his discretion in the award of costs judicially and judiciously as well. Consequently, this court will not interfere with the trial Judge’s exercise of discretion in his award of costs which was not depicted as violative of set down principles for the award of costs generally. However, it tallies with common sense that if an appeal succeeds; the costs awarded by the trial Judge must go into oblivion. I resolve issue of costs in favour of the Respondents.
To round it up, I need to state it that interim injunction order is not meant to provide a temporary victory to be used against an adverse party ad infinitum. It should not be allowed to hang on the opposing side like the proverbial sword of Damocles. The duration of its potency is always invariably limited to a period of about two weeks. It must not be granted to humiliate the other party. It is a temporary restraining order made pending the determination of the motion on notice to sustain the status quo ante bellum and afortiori, keep the res intact.
The Appellant, as stated earlier in this judgment, desire that the ruling of 14-10-93 be quashed and the interim injunction order dissolved. As well, they want the suit transferred to another High Court Judge in the judicial division for determination. The last request should not just be granted as a matter of course or just for the asking. The whole circumstance of the matter must be carefully considered in all it’s ramification in my considered view. The circumstance should be such that requires a fresh mind to hear the parties’ standing on a level ground without any misgiving attached thereto. Since the trial Judge is deceased, transfer is no longer feasible. Otherwise, I would have been tempted to do so in this matter.
I come to the final conclusion that the appeal is very meritorious. It is accordingly allowed by me. The ruling of Trial Judge entered on 14-10-93 hereby quashed. It is set aside with the attendant costs awarded therein. If the cost awarded by the trial Judge against the appellants on 14-10-93 has been paid, such should be refunded by the Respondents to the Appellants forthwith. The order of interim injunction dished out on 23-7-93 is hereby dissolved. Suit is remitted to the High Court of Justice, Awka to be assigned as deemed fit by the Chief Judge of Anambra State. The Respondents shall pay N2,000 costs to the Appellants.
Other Citations: (1999)LCN/0600(CA)