John Asuquo Etim V. The Registered Trustees of the Presbyterian Church of Nigeria (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

This is an appeal against the order of Emilia Ibok, J. made on 19th day of December, 2000 at the High Court of the Cross River State of Nigeria holden at Calabar, wherein she granted an order of interlocutory injunction in favour of the plaintiff now respondent.

In the writ of summons filed on 8th day of December, 2000, the plaintiff/respondent prayed the court as follows:
“1. A declaration that plaintiff is entitled to the statutory right of occupancy grantable by the Governor of Cross River State over the piece or parcel of land lying and situate at Big Qua Town, Calabar formerly occupied by one Mr. Alfred O. Olaiya, on the permission of the plaintiff and referred to as No. 18 Big Qua Town Road, or any part thereof.

2. An order of perpetual injunction restraining the defendant, his workmen, agents, servants, assigns, or privies from erecting any structure or continuing with any construction work on the piece or parcel of land known as No. 18 Big Qua Town Road, or any part thereof.

3. The sum of N500, 000.00 (five hundred thousand naira) only being damages for trespass”.

The above writ of summons was also filed together, on the same day, with a motion on notice for interlocutory injunction to restrain the appellant from erecting anything on the disputed land pending the determination of the substantive suit. The said application for interlocutory injunction was slated for hearing on the 19th day of December, 2000.

As borne by the records, the defendant/appellant was not personally served with the aforementioned processes until the 14th day of December, 2000 almost seven days after filing. See page 28 of the record of proceedings. The days following the date of the personal service on the appellant were public holidays and a weekend and so, on the 1st day of December, 2000, the appellant’s solicitors filed a memorandum of appearance. See page 29 of the records. On the 19th day of December, 2000, when the motion on notice was fixed for hearing, the appellant’s counsel sent in a letter applying for the motion on notice to be adjourned due to previously scheduled matters. See page 30 of the record of proceedings.

As borne by the records the Registrar of the trial court duly acknowledged the receipt of the letter. Notwithstanding the said application for adjournment by the appellant’s counsel, the respondent’s counsel moved the lower court and the learned trial Judge, after bearing the argument on the respondent’s motion on notice for interlocutory injunction restraining the appellant even without hearing him in opposition. See pages 36 to 38 of the records.

Being dissatisfied with the order of the learned trial Judge in granting the said application for interlocutory injunction without having heard from him, the appellant has now appealed to this court as per the notice and grounds of appeal set out at pages 39 to 41 of the records.

From the grounds of appeal the appellant raised three issues for determination.

They are:
“1. Whether the appellant was accorded a fair hearing or hearing at all before the application of the respondent for the grant of interlocutory injunction was granted.
2. Whether in the circumstances of this case the learned trial Judge ought not to have considered and granted an adjournment to the appellant to file his counter affidavit to the respondents application for interlocutory injunction.
3. Whether the trial court can grant an interlocutory injunction on 19th December, 2000 when both the writ of summons and the application for interlocutory injunction served on the appellant on 14th December, 2000 required the appellant to enter appearance within 8 days.”

The respondent also formulated three issues for determination.

They are:
“(i) Whether the learned trial Judge gave the appellant an opportunity to be heard before hearing and determining the application for interlocutory injunction?
(ii) Whether in the circumstances of the case the learned trial Judge exercised her discretion properly in proceeding with the matter?
(iii) Whether an order of injunction can only be granted after the date limited in the writ of summons for entering appearance has expired?”

Apart from semantics, it goes without saying that the three issues formulated by the parties are one and the same thing.