Prince Kayode Olowu V. Building Stock Limited (2003)
LawGlobal-Hub Lead Judgment Report
MORONKEJI OMOTAYO ONALAJA, J.C.A.
The plaintiff, a company incorporated in Nigeria is referred to in this judgment as respondent issued a writ of summons in the High Court of Lagos State against the defendant henceforth referred to in this judgment as appellant on 15th day of February, 2000 and endorsed the writ and claimed as follows:
“The plaintiff’s claim is for-
‘(1) A declaration that the plaintiff is entitled to a statutory right of occupancy in respect of the property known as and situate at 3 Chris Alli Crescent (formerly 3 Sanni Abacha Crescent, Ikoyi, Lagos) also known as Plot 2 Block 3, Second Avenue Estate, Ikoyi, Lagos.
(2) A declaration that the plaintiff is entitled as against the defendant and the whole world to the possession and quiet enjoyment of the said property to wit 3 Chris Alli Crescent (formerly 3 Sanni Abacha Crescent, Ikoyi, Lagos) also known as Plot 2 Block 3, Second Avenue Estate, Ikoyi, Lagos.
(3) The sum of N3,000,000.00 (three million naira only) being damages against the defendant for the trespass committed on the plaintiffs’ land by the defendants.
(4) An order of perpetual injunction restraining the defendant, his agents, servants, privies whatsoever, from disturbing the plaintiff’s peaceful enjoyment of its said property.”
Respondent filed same day along with the writ of summons motion ex parte under Order 41 rule 4 and Order 42 rules 1 and 9 High court of Lagos State (Civil Procedure) Rules, 1994 and the Inherent Jurisdiction of the Court and sought the under mentioned reliefs:
“(1) An order of interim injunction restraining the defendant and his agents, servants, thugs and privies whatsoever from continuing their acts of trespass or in any way whatsoever, hindering impending or tampering with the plaintiff’s enjoyment of the plaintiff’s property situate at and known as No.3 Chris Alii Cresent (formerly 3 Sanni Abacha Crescent, Ikoyi, Lagos) also known as Plot 2 Block 3, 2nd Avenue Estate, Ikoyi, Lagos pending the healing and final determination of the motion on notice filed herein.
(2) An order granting leave to the plaintiff/appellant to serve the enrolled order of interim injunction (if granted) on the defendant together with the writ of summons and motion on notice for interlocutory injunction.
(3) Such further order(s) or other order(s) as this Honourable Court may deem fit to make in the circumstances.”
Respondent filed a supportive affidavit of 17 paragraphs set out in pages 8 to 10 of the record of appeal.
In addition respondent also filed an affidavit of urgency at pages 4 and 5 of the record of appeal.
The matter was fixed for 24th February, 2000 before the High Court of Lagos holden in Lagos. On 24th February, 2000 the matter came up before Hon. Justice S. O. Hunponu Wusu as recorded at page 181 of the record of appeal which after names of the parties it reads thus, it is better to reproduce because of the comments on proceedings of 24th February, 2000.
“Parties are absent O. A. Ezebu for the plaintiff/applicant holds Ayeni’s brief. There is a motion ex parte dated 14/2/2000 asking for an interim injunction and for counsel to serve the writ of summons, statement of claim on the defendant. He refers to the affidavit in support and moves. It is ordered as prayed.
Return date is 6/3/2000
(Sgd) (S. O. Hunponu-Wusu)
Judge,
24/2/2000.”
On 6th day of March, 2000, learned counsel for appellant drew the attention of the court to counter-affidavit and a motion on notice to discharge the order of court dated 24/2/2000. Learned counsel for respondent informed the court that he was served with the counter-affidavit last Friday before Monday, 6th March, 2000 and requested for time to react within 7 days and that the defendant (appellant) has not been complying with the order of court. Respondents’ were to give express understanding (sic undertaking) within 48 hours of today the matter was adjourned technically to 8th March, 2000 for the argument of appellant’s (defendants) motion on notice.
The matter was adjourned later to 4th April, 2000. Written addresses were written by the parties and the preliminary objection of respondent against the motion to 17th April, 2000. As the written addresses were filed the ruling was adjourned to 16th June, 2000. The motion for discharge and preliminary objection were adjourned several times until the ruling was delivered on 19th September, 2000. The ruling covered pages 189 to 202 of the record of appeal. As the learned Judge found against appellant who was found to be in contempt of the order of 24th February, 2000 the application for discharge of the ex parte or interim order of 24th February, 2000 was refused whilst in the same ruling an order of interlocutory injunction was slammed on appellant.
Dissatisfied with the refusal to discharge the interim order of 24th February, 2000 and the grant of interlocutory injunction against appellant gave rise to this appeal. After filing the notice of appeal appellant with the leave of court filed an amended notice of appeal which was incorporated in appellant’s brief of argument of 15th February, 2002, the said appellant’s brief was served on respondent as 1st respondent. Appellant withdrew the appeal against 2nd respondent making the battle line to be drawn between appellant and respondent.
After service of appellant’s brief of argument on 1st respondent, appellant filed a reply brief on 9th October, 2002. Upon the matter coming up for argument of the appeal in this court appellant relied on his brief of argument filed in this court on 15th February, 2002 and his reply brief of 9th October, 2002 and urged the court to allow the appeal.
Respondent in arguing the appeal relied on its brief of argument filed on 18th September, 2002 and urged the court to dismiss the appeal.
From the amended notice of appeal in paragraph 3 of appellant’s brief of argument the under mentioned were raised as issues for determination in this appeal by appellant.
“3 Issues for determination
(i) Whether the principles for discharging an order of interim injunction and those for granting an order of interlocutory injunction are the same.
(ii) Whether the learned trial Judge was right in declining to discharge the order of interim injunction?.
(iii) Whether the proceedings leading to the grant of the interim junction and refusal to discharge same deprived the appellant of his constitutional right to fair hearing.”
Respondent at page 3 paragraph 3 of its brief of argument raised as under the issues for determination thus-
” 3.00 Issues for determination
‘(1) Whether the procedure adopted by the lower court hearing and determining the motion to discharge an interim injunction as well as a motion for interlocutory injunction was correct.
(2) Whether the learned trial Judge was wrong in refusing to discharge the order of interim injunction.
(3) Whether the grant of the interim injunction and the refusal to discharge same deprives the appellant of his constitutional right to fair hearing.”
It is pertinent to note that the issues for determination raised in appellant’s brief of argument and that raised in respondent’s brief of argument are similar in consideration of the appeal cross-references shall be made to arguments proffered by appellant and respondent.
As stated supra let me reiterate and re emphasize that each party raised similar 3 issues for determination in this appeal which centred around whether the learned Judge exercised his refusal to discharge the order of interim injunction or ex parte order of injunction judicially and judiciously rightly in accordance with the legal principle to guide a learned Judge in exercise of its undoubted judicial discretion to grant or refuse the interim order or ex parte order of injunction. For this reason issue 2 in appellant’s brief of argument and in respondent’s brief of argument being similar shall be considered first in this matter on appeal.
Issue 2 whether the learned Judge was right in declining to discharge the order of interim injunction. Appellant submitted and contended that the facts placed before the court did not show any urgency which tantamounts to an improper exercise of discretion by the learned Judge of the lower court to consider the issue of injunction under Order 42 rule 3 of the High Court (Civil Procedure) Rule which provides that: –
“Except where according to the practice existing at the time of the passing of the law any order or rule might be absolute ex parte in the first instance.”
Learned Judge was wrong in law to have refused to discharge the order of interim injunction therefore the appeal be allowed.
Respondent submitted that an order of interim injunction is a temporary relief which leaves matters in status quo until a named date or pending the determination of the motion on notice. At this stage, the court need not consider any contentious issues but to keep the matters in status quo, in making such an order regard to the rights of the parties, the balance of conveniences and the extent to which any damage to the applicant must be considered as decided and reliance on the case of Egwuatu Kukoyi v. Central Bank of Nigeria & 70rs. (1989) 1 NWLR (Pt. 98) page 419 at 440 Sc. So the lower court acted properly to have refused the application of the appellant to discharge the order and that the appeal be dismissed as lacking substance. This completes the arguments of both parties to this appeal.
The application ex parte or interim injunction was brought under Order 41 rule 4 and Order 42 rules land 9 High Court of Lagos State (Civil Procedure) Rules, Cap. 61, Laws of Lagos State, 1994 on 14th February, 2000 with supportive affidavit of urgency.
Upon the ex parte application for interim injunction coming up for consideration as reflected above the learned Judge after his attention was drawn to ex parte motion on 24th February, 2000 granted the order thus at page 181 of the record of appeal-
“It is ordered as prayed.”
This was the interim order that appellant applied within time to be discharged which was refused.
At page 51 chapter three Chief Afe Babalola’s Book on Injunctions and Enforcement of Orders stated as follows:
“If there was an area of law which enacted perennial problem for lawyers and Judges, it was the practice and procedure for the grant 6f interim and interlocutory injunctions.
This was due to a great deal of confusion and conflicting principles adopted by our courts in deciding whether or not to grant interim or interlocutory injunction pending the determination of the substantive suit.
It was the chaotic situation that made Dr. Justice G.B.A. Coker, J.S.C. in the case of Ladunni v. Kukoyi (1972) 1 All NLR 133 at 136 observe as follows:
‘The law with respect to interim injunction constitutes one of the most difficult sections of our law and the difficulty exists not because the law is recondite but because the ascertained principles of law must be subjected at all times to a rather amorphous combination of facts which are perpetually different in every case. Undoubtedly, a good deal of judicial discretion is called for and we would think that no one now imagines that such an order could or would be granted as a matter of course’ .”
(Italics mine)
The unsettled and conflicting situation was well articulated by Nnaemeka-Agu, J.S.C. in Globe Fishing Industries v. Chief Folarin Coker (1990) 7 NWLR (Pt. 162) at 265 at 293 – 294 which reaffirmed and reconfirmed his previous analysis of the difference between ex parte interim injunction and interlocutory injunction in his judgment in NAB. Kotoye v. Central Bank of Nigeria & 7 Ors. (1989) 1 NWLR (Pt. 98) page 419 at 422 – 423 SC and that the main features of interim injunction are-
“(a) It is made to preserve the status quo until a named date or until further order or until an application on notice for an interlocutory injunction is heard.
(b) It is for a situation of real urgency to preserve and protect the rights of the parties before it from destruction by either of the parties.
(c) Unlike an ex parte injunction, it can be made during the hearing of a motion on notice for interlocutory in-junction when because of the length of the hearing, it is shown that an irretrievable mischief or damage may be occasioned before the completion of hearing.
(d) It can be made to avoid such an irretrievable mischief or damage when due to the pressure of business of the court or through no fault of the applicant it is impossible to hear and determine the application on notice for interlocutory injunction.
(e) What the court does in making an order of interim injunction is not to hear the application for interlocutory injunction ex parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined.”
The main attributes of an ex parte injunction include-
(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 application must not be guilty of delay.
(i) It must not be granted unless the application gives a satisfactory undertaking as to damages.
Followed, adopted, re echoed in my paper delivered at all Judges Conference, 2001 at Abuja on the topic “The role of the Judiciary in the attainment of good governance under democratic dispensation with sub title ‘the importance of interlocutory applications in the general administration of justice’.”
Applying the above guiding principles on grant or refusal of interim order of injunction wherein I defined interim injunction as:
“This is a temporary form of injunction which remains in force until named day or date. It is generally contemplated that at the named date the applicant may approach the court by motion on notice seeking a further order restraining the defendant until the final determination of the substantive case. In an urgent case, an interim order in the nature of an injunction may be granted when the other side has been served with the notice of motion but has not had an opportunity of answering affidavit.”
In the instant case, the learned Judge on 24th February, 2000 did not give any reason for granting the interim injunction whether there was real extreme urgency of irreparable injury for which respondent could not be adequately compensated in damages more also when respondent claimed damages for trespass. The learned Judge did not extract from respondent undertaking as to damages.
The failure to extract undertaking as to damages may be treated as fatal but the modern attitude is for the Court of Appeal to extract undertaking as to damages Afro Continental Nig. Ltd. v. Ayantuyi (1995) 9 NWLR (Pt. 420) page 411 SC; Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt. 387) page 1 SC; Ojimba v. Ojimba (1996) 4 NWLR (Pt. 440) page 32 CA.
From the foregoing, let me reiterate that interim in-junction is not synonymous with interlocutory injunction as decided in NIDB v. Olaloni Ind. Ltd. (1995) 9 NWLR (Pt. 419) page 338 CA with different guiding principle to grant interim injunction and interlocutory injunction. Obeya Memorial Hospital v. A.-G., Federation (l987) 3 NWLR (Pt. 60) page 325 SC. From the above, it was crystal clear that as the learned Judge granted the ex parte or interim order of injunction without giving reasons or circumstances that warranted the grant but as a matter of course he referred to page 181 of record of appeal. The ex parte interim order of injunction was granted on wrong principle of law and when application was made for the discharge which was refused was not justifiable in law.
The refusal of the discharge of the order of ex parte, interim order of injunction having been based on wrong principle the complaint against the refusal to discharge the said order is substantial, cogent and sustainable at law thereby issue II raised in appellant’s appeal is resolved in favour of the appellant and thereby the appeal is allowed on this issue II. As stated above issue 2 in respondent’s brief is not dissimilar to issue II in appellant’s brief of argument issue 2 in respondent’s brief is resolved against respondent as its argument are unconvincing, not cogent and unsustainable in law.
With respect, the crux of this appeal was the refusal of the order of discharge of the ex parte, interim order of injunction it is my considered view and opinion the decision of issue (ii) and issue (2) in appellant’s brief of argument and respondent’s brief of argument respectively have subsumed issues (i) and (iii) and issues (2) and (3) in appellant’s brief of argument and respondent’s brief of argument respectively.
I am reinforced in this view as in page 2 of the ruling of 17th September, 2000 and page 190 of the record of appeal it is noted and reads as follows:
”The defendant had been served and has now brought this motion on notice for a discharge of this said interim order. Equally, the plaintiffs filed a motion on notice dated 4/3/2000 by way of preliminary objection to the said defendants motion on notice on the ground that the defendant who was in disobedience of the order of court should not seek such relief.
Written address were ordered filed and exchanged.
The argument of Rasak Okesiji, Esq., the learned counsel to the defendant – appellant was on two issues:
“(1) Whether the defendant was entitled to be heard in respect of his application dated 3/3/2000 seeking for discharge of the interim injunction dated 24/2/2000.
(2) Whether the court ought to set aside the said order of interim injunction dated 24th February, 2000.”
The ruling which gave rise to this appeal was appellant’s application on notice dated 3rd March, 2000.
It is trite law that all courts of Justice set up under section 6 sub-section 6 of 1999 Constitution of the Federal Republic Nigeria should only confine its decision to the claim, application or relief sought before the court and to adjudicate only on the action claimed before it as a court of Justice is not a Father Christmas or a charity it should not grant more than the claim before it Ekpenyong v. Nyong (1975) 2 SC 71 at 80 and 81:
“We think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without the power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and restated by this court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense.
A court of law may award less, and not more than what the parties have claimed. A fortiori the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution, its duty, in civil cases is to render unto everyone according to his proven claim.”
See further Nigerian Deposit Insurance Corporation & 7 Ors. v. Savannah Bank of Nigeria Plc. (2003) 1 NWLR (Pt. 801) page 311 at 367, 368 – 369; Lawal & Anr. v. Oke & Ors. (2001)7 NWLR (Pt. 711) page 88 CA; Fabiyi v. Adeniji (2000) 6 NWLR (Pt. 662) page 532 SC; Afrotec Tech Services (Nig.) Ltd. v. M.I.A & Sons Ltd. (2000) 15 NWLR (Pt. 692) page 730 SC.
Having decided that the crux of this appeal issue ii and issue 2 in the appellant’s brief and respondent’s brief respectively which raised whether the learned Judge was right to have refused the order of discharge which was what the motion of 3rd March, 2000 was all about and having resolved that the learned Judge was in error and exercised his discretion on wrong principle of law the appeal is allowed on this ground. The other issues (i) and (iii) appellant’s brief and issues (1) and (3) respondent’s brief were on irrelevant matters not sought on the motion for the discharge of the order of interim injunction are subsumed in issues (ii) and (2) appellant’s brief and respondent’s brief respectively they are not germane for this appeal.
For the foregoing reasons ,the appeal is allowed the case is remitted to the High Court of Lagos State for an accelerated hearing of the substantive suit.
Appellant having succeeded in the appeal is entitled to costs which acting judicially and judiciously is fixed in the sum of N5,000.00 in favour of appellant against the respondent.
Other Citations: (2003)LCN/1431(CA)