Pius Itama & Ors V. Emmanuel Osaro-lai & Ors (2000)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
On the 15th May, 1997, the Respondents, as Plaintiffs in the High Court of Justice, Port Harcourt brought an action against the Appellants as Defendants seeking for some declaratory reliefs and mandatory orders. The cause of action arose from the suspension of the first Respondent as Chairman of the Port Harcourt Zone of the Nigeria Welders Association by the National Executive of the Association in a meeting held in Kaduna on the 23rd April, 1997 and the appointment of the 3rd Appellant as the Ag. Chairman of the Port Harcourt Zone. The Respondents also sought for a declaration that the stay of the National Secretary of the Association at the Port Harcourt Zonal Office amounted to a usurpation of the powers and duties of the Executive Officers of the Port Harcourt Zone.
At the institution of the suit, the Respondents brought a motion ex parte for all order of an interim injunction against the Appellants pending the determination of the motion on notice, which was also filed along with the motion ex parte. The motion ex parte reads:
“Take notice that this Honourable court will be moved on … day of… 1997 at the hour of 9 O’clock in the forenoon or so soon thereafter is the Plaintiffs/Applicants or Counsel on their behalf can be heard praying the Court for:-
1) AN ORDER OF INTERIM INJUNCTION restraining the 3rd Defendant from functioning, acting, answering or parading himself as the Zonal Chairman of Zone C of the Nigerian Welders Association and in any way whatsoever from carrying out, assuming or performing the duties of G the Zonal Chairman of the said Zone C -which has its secretariat at Port Harcourt pending the determination of the motion on Notice.
2) AN ORDER OF INTERIM INJUNCTION restraining the 2nd Defendant from staying at Zone C office or the Association in Port Harcourt to function or operate his duties and functions, as the National Secretary of the Nigerian Welders Association, pending the determination of the motion on notice.
3) AND for such further order or orders as the Honourable Court may deem fit to make in the circumstance.
The motion was supported by an affidavit of 52 paragraphs and it was eventually taken by the Court on the 30th of May, 1997 and granted. The trial Judge Ogbunna, J., in his ruling, held as follows:-
“By paragraph 16 of the affidavit in support of the motion the National President and the National Secretary have acted on their own in taking decision that have led to this suit being filed. They suspended the Branch Chairman and later constituted themselves into a fact-finding committee, which removed the branch Chairman. These facts are contained in the affidavit. By paragraph 25 of the affidavit, the power to remove the Branch Chairman lies with the branch itself. It is also exposed to in the affidavit that the 3rd Defendant is being tipped to succeed the Branch Chairman that is the 1st plaintiff.
From the fact contained in the affidavit, I think it is necessary to restrain the Defendants at this stage before the matter gets out of hand. The motion therefore succeeds and it is ordered as follows:
1) That the 3rd Defendant is hereby restrained from functioning, acting, answering or parading himself as the Zonal Chairman of Zone C of the Nigerian Welders Association and in any way whatsoever from carrying out, assuming or performing the duties of the Zonal Chairman of the said Zone C which has its Secretariat at Port Harcourt pending the determination of the motion on notice.
2) That the 2nd Defendant is hereby restrained from staying at Zone C Office of the Association in Port Harcourt to function or operate his duties and functions as the National Secretary of the Nigerian Welders Association pending the determination of the motion on notice. It is further ordered that, the Defendants should enter into bond in the sum of N5,000.00 (Five Thousand Naira) as damages should the motion on notice prove frivolous.”
Dissatisfied with that ruling, the Appellants appealed to this Court, and in accordance with the rules of Court, filed a brief in which they identified one issue for determination as follows: “Whether the Respondents satisfied, in all the circumstances of this case, the conditions for the grant of an ex parte order of interlocutory injunction.”
The Respondents also filed a brief and identified two issues for determination as follows:
“1) Whether the plaintiffs/Respondents satisfied the conditions necessary for the grant of the order of interim injunction
2) Whether there went prevailing circumstances of real urgency for the granting of the order of interim injunction EX PARTE”
The Appellants also filed a reply brief.
The main argument of the learned Counsel for the Appellants is that an order of interlocutory injunction ought not to be granted ordinarily exparte. This is because of the overriding need to hear both parties to a dispute. The grant is in the realm of an extra-ordinary jurisdiction, which has a high propensity of being abused. Before it can be granted, the Applicant must show that his case is one of extreme or extraordinary or real urgency and if it is not granted, irreparable damage could be caused before the same application on notice is heard, that it is impossible to invite the other party sought to be prevented, and that he is not guilty of delay. He relied on the following cases: Ogbonna v. NURTW (1990) 3 NWLR (Pt.141) 696 at 709A: Okechukwu v. Okechukwu (1989) 3 NWLR (Pt.108) 234 at 247A. Onwuzulike v. Nwokedi (1989) 2 NWLR (Pt.102) 229 at 239D. He said that in this case, the Respondents did not show any real urgency and were guilty of unreasonable delay.
In reply to this submission, the learned Counsel for the Respondents submitted that as a rule, an applicant who applies for an interim injunction must show by way of affidavit evidence that there is a triable issue, there is need to maintain the status quo or preserve the balance of convenience is on the Applicant’s side, the Applicant has made an undertaking as to damages and there is a matter of real urgency. He relied on the following cases: Ita v. Nyong (1994) 1 NWLR (Pt.318) p.56 at PP & Ratios 2, 3 & 4: Obeya Memorial Hospital v. A.G. Federation (1987) 3 NWLR (Pt. 60) 325, Kotoye v. CBN (supra); 7UP Bottling Company Ltd. v. Abiola & Sons Nigeria Ltd. (1995) 3 NWLR (Pt. 383) P.257, RATIOS 2, & 4. He said that, all these necessary ingredients were established in the affidavit evidence in support of the Respondents’ motion, and that the trial Court was right in granting the interim injunction ex parte.
The principles for the grant of interim injunction have been well stated in our law reports. In the case of Kotoye v. CBN (1989) (NWLR (Pt.98) 419, the following principles were stated:
(a) “It can be made when there is a real urgency but not a self induced or self-imposed urgency.
(b) It can be made in an interlocutory or interim injunction application until a certain day usually the next motion day by which time the other side should have been put on notice.
(c) It cannot be granted pending the determination of the substantive suit or Action.
(d) It can be granted where the Court considers on a prima facie view that an otherwise irreparable damage may be done to the Plaintiff before an application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party.
(e) It can be granted where it is necessary to preserve the res which is in danger or imminent danger of being destroyed.
(f) A person who seeks an interim order ex parte while also applying for an interlocutory injunction, files two motions simultaneously one ex-parte asking: for the interim order and the other on notice applying for an interlocutory injunction; the Court before whom the applications come takes the ex parte motion and if satisfied that it has merit ex facie grants it making the order to the date when the motion on notice shall be heard.
(g) Although it is made without notice to the other party, there must be a real impossibility of bringing the application for such injunction on notice and serving the other party.
(h) The Applicant must not be guilty of delay.
(i) It must not be granted unless the applicant files a satisfactory undertaking as to damages.”
At page 449, Nnaemeka-Agu, J.S.C. summarized the basic principles as follows:
“Also the basis of granting any ex parte order of injunction, particularly in view of section 33(1) of the Constitution of 1979, is the existence of special circumstances, invariably, all-pervading real urgency, which requires that the order must be made, otherwise an irretrievable harm or injury would be occasioned to the prejudice of the Applicant. Put in another way, if the matter is not shown to be urgent there is no reason why ex parte order should be made at all the existence of real urgency, and not self-imposed urgency, is a sine qua non for a proper ex parte order of injunction”.
From the facts of this particular case, it can be seen from the supporting affidavit to the motion ex parte for interim injunction that there is no averment whatsoever of extreme urgency. The main grievance of the Respondents was that the first Plaintiff was wrongly removed as the Chairman of Zone C of the Nigerian Welders Association and that, the 3rd Appellant was appointed as Acting Chairman and they did not want him to operate as Acting Chairman. See paragraph 12 of the affidavit.
In paragraph 20 of the affidavit, it was averred as follows:
“That the said Ephraim Israel, appointed to act as Chairman of Zone C by the National President and Secretary did not function as the Chairman of Zone C owing: to the protest by members of Zone C against the purported suspension of the said Emmanuel Osaro Lai.”
Exhibit A1, which was exhibited to the affidavit in support of the motion, shows that the 1st Respondent was actually suspended as Chairman of the National Working Committee for Zone C and not as Chairman of the State Executive of Zone C as alleged in paragraph 12 of the affidavit. The purported removal was done on the 23rd April, 1997 but the motion for interim injunction was not filed until the 15th of May, 1997 and no reasonable explanation has been given for the delay in the supporting affidavit.
There is nothing in the affidavit to show that it was impossible to serve the Appellants with the motion on notice to put them on notice of the motion for interlocutory injunction. From what I have observed from the facts of this case, there was absolutely no need for the grant of interim injunction. There was no urgency of such a grave nature that would require the grant of an interim injunction ex parte. It has been said over and over again that trial Courts should be reluctant to make interim orders ex parte unless the circumstances are exceptional and the opposing party cannot be put on notice.
This is an appeal, which must be allowed. The decision of the trial Court is arbitrary and cannot be allowed to stand. Accordingly, I allow this appeal, set aside the order of interim injunction granted by the lower Court and dismiss the application before the lower Court. The case is remitted to the Chief Judge of Rivers State to be reassigned to another Judge. The appellants are entitled to costs of N2,000.00
Other Citations: (2000)LCN/0701(CA)