H.R.H. Chief F.C.B. Isamade V. Chief J. U. Okei & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A
The respondents caused a writ of summons to be issued claiming as follows:
“(a) Declaration that the plaintiffs are exclusively entitled to the customary right of occupancy relating to or in respect of Block 67 ID. Iyiowa Layout Odekpe, Ogbaru Local Government Area of Anambra State.
(b) N1, 000.000.00 (One million naira) damages for trespass.
(c) Perpetual Injunction restraining the defendants, his servants, agents and privies or in whatever combination from entering or remaining or in whatever manner, interfering with the plaintiffs’ right of occupancy to the aforesaid Block 67 ID, Iyiowa Layout, Odekpe, Ogbaru Local Government Area.”
The respondent’s application for the writ of summons dated 22nd December was filed on 28th December, 1994. On the very day the writ or summons was applied for and before pleadings were ordered the respondents, by motion on notice supported by affidavit, applied in the following terms-
“restraining the defendant, his servants, agents and or privies or in whatever combination from entering or remaining on or in whatever manner interfering with the plaintiffs’ right of occupancy to the piece or parcel of land popularly known to the parties as Block 67 ID, Iyiowa Layout, Odekpe, Ogbaru Local Government Area, pending the determination of the substantive suit, and for such further order(s) as the Court may deem fit to make in the circumstance.”
Apart from the affidavit in support of the motion-on-notice, the respondents deposed to a further affidavit on 20th March, 1995 in apparent response to a counter-affidavit sworn to on the 9th February, 1995 by the appellant.
Learned counsel for respondents, on behalf of his clients, canvassed the application on the 3rd day of April 1995 when the appellant’s counsel asked for and obtained adjournment for his reply to 4th May 1995. In the meantime, the appellant took advantage of the adjournment to file a motion-on-notice challenging the constitution of the suit by raising the issue of the standing of the respondents to institute the action, the competence or the court to entertain the action as well as his own status as defendant before the court. On the adjourned date, further hearing of the motion for interlocutory injunction was suspended to permit the hearing of the latter motion, questioning the competence of the suit. It was given priority until disposed of on 24th July, 1995 when further hearing on the motion for interlocutory injunction was fixed for 6th November, 1995. But there was no progress on that day because the matter had to be further adjourned to 8th and 11th January 1996 on the ground that the appellant’s counsel was indisposed. On the adjourned date both appellant and his counsel were conspicuously absent from court without proffering any explanation. The learned trial Judge refused the respondents’ request to deliver his ruling without hearing the appellant and adjourned the matter to 11th January, 1996, Once more, on the new adjourned date both his counsel and appellant, without giving any explanation, were absent from court, as the court was otherwise engaged, the hearing of the application was adjourned off record to 15th February, 1996.
On that day both appellant and his counsel were as usual not present in court, although his learned counsel wrote to ask for an adjournment on the ground that he was not well. The request was clearly unacceptable to the court which, after reviewing the antecedents and circumstance of the motion, with particular regard to the appellant’s conduct, proceeded to deliver its ruling. In the ruling, the court granted the relief sought by respondents in the motion-on-notice. The ruling which is very short is setout immediately hereunder in view of the issues or issues raised in the appeal. It reads –
“I have checked my record and I find out that both the defendant and his counsel is treating this court and the application with contempt. A.A. Ononye argued this motion on 3/4/95 and exhibited documents which show the status quo before this action was instituted as per exhibit C. Having regard to the depositions and principles enunciated in the case of Kotoye v. CBN (1989) 1 NWLR (Pt.98) p.419, I also find that the balance of convenience is in favour of the plaintiff. I therefore grant the prayers sought in the motion on notice that is to say:
(1) The defendant, their servants or privies are hereby restrained from entering or remaining on or in interfering with the plaintiff’s right of occupancy of the piece or parcel of land known as Block 67 ID Iyiowa Layout Odekpe in Ogbaru Local Government Area as shown in Exhibit C, i.e. plan NA/AN/212/94 dated 28/2/94 until the determination of this suit.
This ruling is inspired by the utter neglect and nonchalant attitude of the defendant. The fact that courts frown at interlocutory injunction does not mean that courts cannot, in appropriate case not (sic) grant them.” (Italics is mine).
The appellant was thoroughly unhappy with the decision and being dissatisfied appealed to this court on three grounds of appeal. The grounds of appeal are not only prolix but also argumentative contrary to the express provisions of Order 3 rule 2 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990.
The parties filed and exchanged briefs of argument in compliance with the provisions of the Court of Appeal Rules Cap. 62. In the appellant’s brief these issues were formulated –
“1 (a) Did the absence of the defendant/appellant and his counsel in court relieve the learned trial Judge of his duty to fully consider and/or deal with the facts deposed to in the various affidavits (especially the defendant/appellant’s counter affidavit) which were properly before him before proceeding to make the order now appealed against?
(b) Is the mere fact that a respondent to an application for interlocutory injunction (who has filed a counter affidavit) as well as his counsel absent at the hearing of the said application sufficient to “inspire” the court to grant the application without considering the facts deposed to in the affidavits before him?
- Is the order of interlocutory injunction as made by the learned trial Judge in this case supported by the facts in evidence before him?
- Was the learned trial Judge right to have proceeded to grant the application for interlocutory injunction without firstly considering and ruling on the application for adjournment made by appellant’s counsel in his knee to the court?”
On the other hand, the respondents in their brief framed a single issue which is rehearsed hereunder –
“Giving all the surrounding circumstances of the application for interlocutory injunction dated 21st December, 1994. Whether the learned trial Judge exercised his discretion judicially and judiciously in granting the application as prayed.”
The only issue calling for consideration is the respondents’ only formulation.
In this connection, the learned counsel for appellant contended that when the motion was moved by learned counsel for respondent he had deposed to a counter affidavit which formed part of the record before the learned trial Judge on the authority of Adjarho A. v. Aghoghorwia (1975) NSCC 2 because the respondent had deposed to a further affidavit in which he averred that he was shown the said counter-affidavit. Counsel then posited a question whether the learned trial Judge was thereby relieved of his duty, by the absence of the appellant and his counsel from court, to consider their own side of the matter. Counsel then submitted that in coming to a decision the court exercises a discretion which ought to take into account the competing right of the parties to justice. Learned counsel for respondent argued that in balancing the interest of the parties the court was duty bound to advert to and consider all the material placed before it. He supported his argument with the case or Obeya Memorial Hospital Ltd v. A.-G., Federation (1987) 3 NWLR (Pt.60) 325 S.C.; (1987) 2 NSCC 96 and Gwabo Gever v. James Tyotsar China (1993) 9 NWLR (Pt. 315) 97.
On the other hand the respondent’s learned counsel speculated that the appellant’s first complaint is that the application was granted merely because of the absence of the appellant and his counsel. He speculated further that the complaint was founded on failure to consider his counter-affidavit and the statement of the Judge that his ruling was inspired by the “neglect and nonchalant attitude of the defendant.” He then submitted that it was gross misconception on the part or the appellant.
Counsel further submitted that learned trial Judge considered “the depositions and the principles enunciated in the case of Kotoye v. CBN (1989) 1 NWLR (Pt. 98) p. 419…” He went on to further contend that there is nothing on record showing that the trial court considered the respondents’ depositions more than appellant and vice versa before conceding that “not many words were applied in the Ruling”. The heart of the appellant’s grouse is the paucity of words on the part of the learned trial Judge. The ruling was dwarf of words which short-coming had opened it to the onslaught.
I agree with learned counsel for the appellant that the application for interlocutory injunction raises issue or exercise or discretion by the learned trial Judge. In this connection, Udo Udoma, J .S.C, stated in the case of Odusote v. Odusote (1971) NMLR 228 at 231 as follows-
“The question or adjournment is a matter in the discretion or the court concerned and must depend on the fact and circumstances of each case. For in matters of discretion, no one case can be authority for another; and “the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion” per Kay L.J in Jenkins v. Bushby (1891) 1 Ch 484 at pA95.” (Italics mine)
Inspite of the passage just recited from the Odusole v. Odusole (supra) the discretionary power conferred upon court is not as wide or absolute as it is exercisable not only judicially but also judiciously. The learned trial Judge did not consider the application properly or carefully, not to talk of his exercising the discretion vested in him judicially and judiciously, apparently because the undoubted delaying tactics adopted by appellant and his counsel troubled him. The absence of the appellant and his counsel on the day the ruling appealed against was given probably annoyed the learned trial Judge, who justifiably saw the absence of the two gentlemen as a contrivance to further delay the hearing of the application. It was one absence too many. It broke the camel’s back.
There is, however, no substance in the submission of the learned counsel for the respondents that the learned trial Judge acted fairly and property in his ruling. The learned trial Judge could not be said to have acted with even-handed when he brushed aside the material placed before the court and acted upon inspiration. The affidavit in support of the motion, the counter-affidavit and the further affidavit are the tools the learned trial Judge is required to employ to arrive at the justice and equity of the case. The learned trial Judge cannot be said to have benefited from these materials by the rather casual manner he referred to the affidavits in his rather brief ruling. In connection with the issue calling for determination, all he did with the materials placed before him is recited immediately below –
“Having regard to the depositions and the principles enunciated in the case or Kotoye v. CBN (1989) 1 NWLR (Pt.98) p.419, I also find that the balance of convenience is in favour of the plaintiff. I therefore grant the prayers sought in the motion”.
The court below did not review the affidavit evidence placed before it by both contestants to determine which of them is more deserving of the discretion of the court. The learned trial Judge is not presiding over a court of summary jurisdiction and cannot be commanding orders reminiscence of the magicians or the good old days. Learned trial Judge was obviously incensed by the conduct of the appellant and his counsel and it was his impression about them that informed the father cavalier manner he treated the application for interlocutory injunction and thereby played into their hands.
I agree with learned counsel for respondents that the case of Agbapuonwu v. Agbapuonwu (1991) 1 NWLR (Pt.165) 33 does not apply since in that case the party applying for adjournment was present in court but was not called upon to proceed, after refusing the application for adjournment, with the case. In the instant appeal, neither appellant nor his counsel was present in court. It would have, for that reason, been physically impossible to ask them to proceed with their submission after refusing the application for adjournment. In the circumstance the learned trial judge, ought to have, on 15th February 1996 when he observed that the appellant as well as his counsel were once more not present in court, reserved his ruling to another date to enable him prepare a well considered ruling in which he would consider the merit and the demerit of the application. It is a well established principle of law that all discretions must be exercised according to common sense and justice, and if there is any miscarriage of justice in the exercise of such discretion it is within the competence of this court to intervene. Clearly, the learned trial Judge cannot be said, in the circumstance, to have arrived “at a true verdict in accordance with evidence” per Goddard L.C.J. in Albert E. Mathenson v. Queen (1958) 42 CAR. 142 at 151. The court seems to have jettisoned the facts when its decision was arrived at through inspiration and not through adherence to the rules of law which is no more than application of the facts to the law, particularly decided cases. The court is required to act on all the affidavit evidence, including the counter affidavit placed before him. Even where one of the parties fails or refuses to make oral submissions in reply, as in the instant case, the court is still required in exercising its discretion to consider or use all material properly forming part of the record. In Gwabo Gever v. James Tyotsar China (1993) 9 NWLR (Pt. 315) 97, the respondent who had previously deposed to a counter-affidavit was absent with his counsel, on the date fixed for hearing from court. The learned trial Judge, in the course of writing his ruling, refused to advert his mind to the counter-affidavit, on the pretext that the respondent by his absence had abandoned the said counter-affidavit. It is apt to observe that counter-affidavit is evidence and unlike pleadings cannot be abandoned for whatever reason once it is deposed to and forms part of the record. It is pleading that is deemed abandoned if no evidence is adduced in support therefor. On this ground the application succeeded and the relief sought was thereby granted. On appeal, this court allowed the appeal and set aside the order of interlocutory injunction on the ground that the right of the appellant in that case to fair hearing had been compromised for failure to take the counter-affidavit into account when the application was being considered by the lower court. The refusal or failure of the learned counsel for appellant in the instant appeal to address the lower court does not ipso facto tantamount to abandonment of the counter-affidavit. In as much as one deprecates misconduct or disrespect to the court by parties or counsel, court’s process should not be used or employed as an instrument or punishment but can be employed effectively, in deserving cases, to maintain social stability. Even where a party to an application fails or is unable to put in a response or fail to appear in court, the court may still not intervene on the side of the applicant if, after examining the material placed before it, it found no merit in the applicant’s case. The mere failure of the appellant to reply to the respondent’s submission should not entitle the latter as a matter of course, to the injunction. The respondents herein had a duty to make out their case notwithstanding the tardiness or absence of the appellant. One wonders when tardiness or absence from court of the respondent to an application becomes a principle for granting such an application.
This brings me to the question of fair hearing on which both counsel addressed the court strenuously in their respective briefs. The test for fair hearing is enshrined in the locus classicus case of Isiyaku Mohammed v. Kana Native Authority (1968) 1 All NLR 424 at 426, where Ademola C.J.N., said –
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial or a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation; justice has been done in the case.” (Italics mine)
This was quoted with approval in the case of R. Ariori & Others v. Muriano B.O. Elemo (1983) 1 SC 13 at pages 25 and 59. What then is the impression formed by a reasonable man who was present and sat through the proceedings? Certainly, on the showing of the learned trial Judge, the reasonable person would not say that the appellant had not been prejudiced. In as much as the learned trial Judge abandoned material properly belonging to his record for his whims and caprices no reasonable tribunal would say that the court below acted fairly. Clearly he cannot staff be inspired to act against the principles of fair hearing.
In the circumstance, the appeal succeeds and is allowed. The order of interlocutory injunction granted on 15th February 1996 is set aside. This court is not a court of first instance. It is a court of appeal which reviews and expresses opinion on the decision or the court below. Since the learned trial Judge failed to express opinion on the material placed before him by the panics, it is not the duly of this court to do so. In the result the case is remitted back to the court below for trial de novo by a judge of Anambra State High Court of Justice in Onitsha Judicial Division other than Nwofor J.
I make no order as to costs.
Other Citations: (1998)LCN/0386(CA)