Universal Trust Bank Limited And Ors V. Dolmetsch Pharmacy (Nigeria) Limited (2007)
LAWGLOBAL HUB Lead Judgment Report
S. N. ONNOGHEN, J.S.C
This is an appeal against the judgment of the Court of Appeal holden at Enugu in appeal No.CA/E/58/99 delivered on the 8th day of May, 2001 in which the court dismissed the appeal of the appellants and affirmed the decision of the trial court refusing to set aside or discharge the ex-parte order made on the 27th day of February, 1997. It is not disputed that the respondent is a customer of the 1st appellant by virtue of which it was granted various credit facilities by the 1st appellant on request. As security for the various facilities, the respondent executed a deed of legal mortgage. exhibit D2, over its estate at Nkpo – Obosi Road, Onitsha. The respondent also executed an all assets debenture wherein it charged all its assets both present and future including but not limiting to floating assets as security for the loan. Exhibits D11 and D12 are the all assets debenture and the certificate of registration of the said debenture at the Corporate Affairs Commission respectively. When the respondent failed to liquidate the indebtedness, the 1st appellant, in exercise of the powers conferred on it by clause 5 of exhibit D11, appointed the 2nd and 3rd appellants as receivers/ managers over all the assets and management of the respondent’s business, vide exhibit D19 which appointment was duly registered with the Corporate Affairs Commission vide exhibit 20. The 2nd and 3rd appellants took over the management of the assets and business of the respondent, according to the appellants, on the 20th day of February, 1997. On the 26th day of February, 1997, the respondent instituted an action at the Federal High Court holden at Enugu in suit No.FHC/ AN/11/97 against the appellants in which it claimed the following reliefs:-
“(1) A declaration that the Deed of Debenture dated the 11th of December 1995 is invalid, null and void and that the consequent appointment of the 2nd and 3rd defendants as receiver/manager of the plaintiff company is invalid, null and void and of no effect whatsoever.
(2) A declaration that the said Deed of Debenture, even if valid, does not incorporate a legal mortgage over plaintiff’s landed properties, if any.
(3) A declaration that the said Deed of Debenture, even if valid, does not cover the landed properties situate at Agulu in Anaocha Local Government Area and No.5 Udodi Crescent Omoba Phase 11, Onitsha both in Anambra State, in that neither is the property of the plaintiff company.
(4) Damages against the defendants jointly and severally.An order of perpetual injunction restraining the defendants, their officers, servant, agents/privies or any of them or otherwise howsoever from interfering or inter-meddling with and/or disruption howsoever the management by the plaintiff company of its affairs.”
Along with the writ of Summons the respondent filed a motion ex-parte praying the court for inter alia, the following orders:-
“1. An order of interim injunction restraining the defendants, their agents and/or privies jointly and severally from further trespassing and/or interfering with assets, business and operations of the plaintiff applicant pending the determination of the motion on notice filed in the suit.
- An order of interim injunction restraining the respondents, their agents/privies jointly and severally from further trespassing on the premises at Agulu in Anaocha Local Government Area and No. 5 Udodi Crescent, Omoba, Phase II, Onitsha, both in Anambra State, which properties do not belong to the plaintiff/ applicant, and in any case are not covered by the Deed of Debenture on the strength of which the defendants/ respondent purported to have acted pending the determination of the motion of notice filed therein.
- An order of interim injunction restraining the defendants/ respondents, their agents and/or privies jointly and severally howsoever from continuing to threaten the operations of the plaintiff’s business and assets pending the determination of the motion on notice.”
The ex-parte motion was supported by an affidavit of 32 paragraphs and many exhibits. The trial court, after due consideration, granted the orders on 27/2/97.
On the 20th day of March, 1997, the appellants, as defendants, filed a motion on notice before the trial court for the following orders: –
An order extending the time within which the defendants/applicants may apply for a discharge of the order of interim injunction granted by this Honourable court on 29th February, 1997 in favour of the plaintiff/respondent.
An order discharging the order of interim order granted on the 27th February, 1997 by the Honourable court.” The grounds on which the application to discharge the order are based are stated to be:-
“(a) The plaintiff suppressed material facts in obtaining the order.
(b) There is no matter of urgency for which the order was obtained
(c) The plaintiff did not give undertaking as to damages.
(d) The order was obtained mala fide.
The application was supported by a 50 paragraphed affidavit.
In a considered ruling delivered by the trial court on the 27th day of January 1998, the court refused the application by dismissing same, thereby giving rise to the appeal to the Court of Appeal holden at Enugu which was dismissed resulting in the instant further appeal to the Supreme Court.
In the appellants’ brief of argument filed on 22/4/02 and adopted in argument of the appeal by learned counsel for the appellants Mogbeyi Sagay. Esq, the following issues have been identified for determination:-
- Whether on the available facts, the Court of Appeal was right in dismissing the appellants’ appeal therefore refusing to discharge the order of interim injunction granted ex parte against the appellants.
- Whether it was proper for the Court of Appeal to affirm the decision of the learned trial Judge exercising his discretion in favour of not discharging the order of interim injunction granted ex-parte against the appellants.”
On the other hand, learned senior leading counsel for the respondent, Prof. B.O. Nwabueze SAN. has in the respondent’s brief of argument filed on 19/11/02. Identified the following four issues for determination.
“(a) Whether the execution of the legal mortgage over the plaintiff/respondent’s land in Nkpor/Obisi Road, the execution of the deed of debenture over the plaintiff’s/ respondent’s business and assets at No.5 Udodi Crescent, Onitsha and the appointment of the 2nd and 3rd appellant’s as receivers/managers under the said deed of debenture deprived the plaintiff/respondent of all ‘recognizable legal right’ in the property, business and assets aforementioned and consequently of locus standi to institute the present suit.
(b) Whether there was real urgency to justify the ex parte interim injunction granted to the plaintiff/respondent by the trial court and that court’s refusal of the appellants’ application for the discharge of the ex parte interim injunction as well as the affirmation by the Court of Appeal of the trial court’s ruling on the application.
(c) Whether the appellants’ invasion of the plaintiff/respondent’s business premises with 30 armed men on 20/2/97 and their continued interferences with the said premises, business and assets after a suit of an injunction was filed on 26/2/97 and an interim restraining order was made on 27/2/97, even assuming the order to have been wrongly made, do not disentitle the appellants to pray the court for a discharge of the order.
(d) Whether the appeal is not fatally flawed by manifold inaccuracies and confusion in ideas in the appellants’ brief as well as by its unintelligible and unseeing language. ”
Learned senior counsel for the respondent then called on the court to discountenance arguments of learned counsel for the appellants on, what counsel referred to as non-issues because –
“(i) there was no averment in support of them in the appellants’ affidavit (which was the only evidence produced by them in support of their application for the discharge of the interim injunctive order) and
(ii) the questions were not raised by the appellants nor canvassed by the parties during the hearing of the application for the discharge of the order, and were not considered in the trial court’s ruling.”
Learned counsel then identified the alleged non issues to be the following:-
“(E) Whether the acts restrained by the ex-parte interim injunction had been completed or not completed at the time the restraining order was granted;
(F) Whether there had been suppression or non-disclosure of certain facts mentioned in the appellants’ brief of argument filed in the Supreme Court.”
It should be noted, as a preliminary matter, that learned counsel for the appellants has submitted in the reply brief filed on 12/12/06 that respondent’s issues (a), (c) and (d) are incompetent as they do not arise from the decision of the Court of Appeal and that the respondent cannot raise them without the leave of court that a ground
of appeal or a point of law not raised in the court below may. With the leave of the appeal court, be raised for the first time on appeal where:
(a) the new ground involves a substantial point of law and it is plain that no further evidence is needed for a decision on it. Relying on Shonekan v. Smith (1964) 1 All NLR 168:
(b) a point of law not taken in the court below, but raised for the first time in appellate court can be entertained by the appellate court if it is satisfied that the evidence upon which it is required to decide the point is on record and that such evidence on record is sufficient to sustain the new point, and that the respondent could not have called evidence in rebuttal;
(c) where the new point goes to the existence of the suit; and,
(d) the appellant is also required to change his argument if the evidence of the new point is on record; relying on Jadesinmi v. Okotie-Eboh (1996) 2 NWLR (Pt.429) 128 at 144.However, turning to the issues as formulated by learned counsel for the respondent, I wish to mention the fact that the respondent has not cross-appealed in this matter. Yet while the appellant submitted two issues for determination, the respondent submitted four issues. It is settled law that issues for determination in an appeal must be distilled from the grounds of appeal filed in the appeal which grounds of appeal must be complaints against the ratio decidendi in the case. In other words, issues for determination in an appeal are not formulated from the evidence before the lower Court and/or the applicable law thereto where there is or are no grounds of appeal attacking such evidence, findings or errors in law. In the instant case, I have gone through the grounds of appeal as filed in this matter and I agree with the submission of learned counsel for the appellants that respondent’s issues (a), (c) and (d) do not arise for determination having regard to the grounds of appeal vis-a-vis the decision of the Court of Appeal and are consequently discountenanced and it does not matter whether learned counsel for the appellants argued them in his brief of argument. It must be remembered always that the grounds on which learned counsel urged the trial court to discharge the ex parte interim order of injunction are as earlier reproduced in the judgment and that it was on the basis of those grounds and the facts in support thereof that the trial Judge exercised his discretion not to discharge the order. The appeal to the Court of Appeal is based on the refusal of the trial court to discharge the order having regards to the facts in support and applicable law thereto. No party is allowed to change his case per court. It is also settled law that where fresh part(s) of law or issue(s) is/are to be argued for the first time on appeal the leave (If either the lower court or the appellate court is required without which the issue(s) or point(s) of law would be incompetent particularly where the issue(s) or point(s) of law do(es) not affect the jurisdiction (If the lower court to entertain and determine the matter before it) as in the instant case.
In this judgment. I will limit myself to the two main issues as formulated by learned counsel for the appellants and any such subsidiary issue(s) as may arise having regards to the grounds of appeal. I need to comment on the fact that this is really a simple matter which had been blown out of proportion by both counsel who have filed copious briefs on multiple issues and/or subsidiary issues on the simple question as to whether or not the trial Court exercised its discretion judiciously and judicially when it refused to discharge the ex-parte order of interim injunction which was the main issue before the Court of Appeal, and whether the Court of Appeal was right in affirming the decision of the trial Court refusing to discharge the said ex parte order of interim injunction, which should be the primary issue for determination by this court. When one bears the above observations in mind, it becomes very clear that appellants’ two issues are really not two but one issue which is also in line with what I had earlier stated as expected of an appeal of this nature.
However, in arguing issue No.1, learned counsel for the appellants submitted that it is settled law that injunction is granted to protect existing legal rights or recognizable right of a person from unlawful invasion by another and that where there is no such right. the order ought not to be granted, for which counsel cited and relied on the case of Akibu v. Oduntan (1991) 2 NWLR (Pt.171) 1 at 3 that the Court of Appeal ought to have discharged the interim order as there was no recognizable right of the respondent to be protected at the time of making the order on 27/2/97 relying on Akapo v. Hakeem – Habeeb (1992) 6 NWLR (Pt,247) 266 – 289; Ojukwu v. Governor of Lagos State (No.2) (1986) 3 NWLR (Pt,26) 39; Obeya Memorial Hospital v. A. -G. of the Federation(1987) 3 NWLR (Pt.60) 325: that the absence of any legal right in the respondent worthy of any protection is the result of the appointment of the 2nd and 3rd appellants as receivers/managers of the respondent thereby vesting the legal rights of the respondent in the properties in the 2nd and 3rd appellants leaving the respondent with no locus standi to institute the action; that the respondent did not establish, by affidavit evidence the urgency needed for a grant of an ex parte order of injunction; that injunction is not a remedy for any act that has been completed, relying on Ajewole v. Adetimo (1996) 2 NWLR (Pt.431 ) 391 at 400 – 401 and urged the court to resolve the issue in favour of the appellants.
It has to be pointed out once more that the grounds upon which learned counsel for the appellants called upon the trial court to discharge its ex parte order of interim injunction are four; namely,
(a) that the plaintiff/respondent suppressed material facts in obtaining the order;
(b) there is no matter of urgency for which the order was obtained,
(c) the plaintiff/respondent did not give undertaking as to damages, and
(d) the order was obtained male fide.
Upon the trial court’s refusal to disengage the ex parte order and the consequent appeal to the Court of Appeal, the issues for determination before the Court of Appeal, as can be seen in the appellants’ brief filed in that court at page 222 of the record are as follows:-
(c)Whether the learned trial Judge was right in refusing to discharge the interim order of injunction dated 27/2/97
(d)Whether the court discretion to discharge the order was judiciously and judicially exercised”
I have gone through the arguments of learned counsel for the appellants in that brief of argument on the two issues, which were argued together, and it is very clear that the issues as to whether the ex parte order of injunction was granted after a completed act or to restrain a completed act, or lack of legal right in the respondent to be protected by the said ex parte order or locus standi of the respondent to apply for the said ex parte order or file the suit in the first instant were never raised and argued before the lower court neither did that court decide the said issues. The issues are therefore fresh issues or points of law being raised for the first time by the appellants before this court. It is settled law that fresh points of law or issues cannot be raised for the first time on appeal without the leave of either the lower court or the appellate court. In the instant case, there is no evidence on record that the appellants obtained the leave of either the Court of Appeal or of this court before raising the issues in question thereby rendering the said issues or points of law incompetent and liable to be struck out. The issues are therefore discountenanced by me.
On the issue of lack of urgency for the ex parte order learned counsel for the respondent submitted that there was real urgency and that the reasons given by the Court of Appeal for its decision on the issue cannot be faulted particularly as the take over of the respondent’s premises was anything but peaceful, that the assets of the respondent were being sold or carted away by the 2nd and 3rd appellants; that the question as to whether there was sufficient time for an applicant to have put the respondent on notice has to be judged in relation to the facts of each case and that the facts and circumstances of this case justified the grant of the order.
It is now settled law that the time relevant in determining, urgency justifying the grant of ex parte interim order of injunction is the time between the happening of the event which is sought to be restrained and the date the application for an injunction could be heard if taken after due notice to the other side – see Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 per NNAEMEKA AGU, JSC. From the facts relevant to the issue as contained in the affidavits which were accepted by the lower courts, it is clear that the take over of the respondent’s business premises was on 20/2/97 and it was the event whose continuance the respondent sought to restrain by the ex parte order by an application filed on 26/2/97; there was a weekend between 20/2/97 and 26/2/97. From the record the action was filed in Enugu while the appellants were to be served in Lagos. In normal circumstances the law requires thirty days between service and hearing of the motion on notice outside jurisdiction and that service out of jurisdiction has to be with leave of court first had and obtained. I therefore agree with the Court of Appeal that having regards to the
facts of the case it would have been impracticable to have put the appellants on notice without the risk that the respondent’s business might be destroyed while the appellants remained in occupation of the promises and in control of its operations and assets. I therefore resolve the issue against the appellants.
On issue 2 learned counsel for the appellants submitted that the Court of Appeal was wrong to have affirmed the decision of the trial court refusing to discharge the order of injunction when it was overwhelmingly posited that the respondent massively suppressed material facts and indeed misdirected the mind of the court into granting the ex parte injunction; that the respondent suppressed the fact that the Deed of Debenture was signed by the Chief Executive of the respondent; that the Deed of Debenture is very material to the case of the respondent; that though the respondent acknowledged the appointment of the 2nd & 3rd appellants as receivers/managers but suppressed the fact of what date the appointment took effect and when it became aware of such appointment when it exhibited the copy of the Deed of Appointment; that where an ex parte order of injunction is based on an important misstatement, the court should not hesitate to discharge the order at once, relying on Okechukwu v.
Okechukwu (1989) 3 NWLR (Pt. 108) 234 at 246, and urged the court to resolve the issue in favour of the appellants. On his part, learned senior counsel for the respondent submitted that the facts relied upon by counsel for the appellants in making the submission of suppression of facts are contrary to the facts deposed to in paragraphs 7, 9,10,11,12 and 15 at pages 84, 85 and 86 of the record, of their affidavit that the said depositions relate to the amount which the appellants claimed the respondent was indebted to it, the nature of the facility from which the debt arose (whether loan, overdraft, letter of credit, etc), the security for the facility, how or
by whom the facility was granted; that the trial Court was right in holding that the alleged suppressed facts were irrelevant to the application; that there was no evidence to the fact that the respondent did not disclose the existence of a deed of debenture neither was the issue raised before the trial court which therefore had no opportunity of deciding it; that the issue cannot now be raised before the Supreme Court.
In any event learned counsel submitted that a party cannot be said to have suppressed a fact of the existence of a document which he has exhibited before the court (exhibit BON 8); that the pleas of non est factum raised in paragraph 19 of the respondent’s affidavit is a well known defence at common law, which allows a person to say that a deed bearing his signature is not, in fact, executed by him because his signature on was obtained by duress, undue influence, intimidation, etc; that all the instances listed as constituting suppression of material facts were not covered by the affidavit evidence before the court neither were they raised before the trial court which consequently never proffered any opinion thereon and that this court should discountenance them: that the determination of what facts are material in an application for an interim injunction must have regard to the claims in the substantive suit and urged the court to resolve the issue against the appellants.
It is settled law that the court that makes an ex parte order of interim injunction has the inherent power or jurisdiction in an appropriate case to vary, or discharge same. The grounds on which the court will set aside, vary or discharge an order of interim injunction made ex parte include the following:
(i) if the plaintiff has not used his administrative powers that might have resolved the difficulty;
(ii)if default has been made in giving security for costs:
(iii)if the affidavit has not been filed when the injunction was moved for;
(iv)if it was granted on a suppression or misrepresentation of material facts;
(v)if it was irregularly granted;
(vi)if the plaintiff failed to attend to be cross examined:
(vii)if there had been delay in complying with an undertaking to amend the writ by adding a party as plaintiff;
(viii) if there is non-disclosure of material facts.
It is no excuse for the plaintiff or a party to say that he was not aware of the importance of the facts which have been suppressed or not brought to the attention of the Court. The law is that the court will deal strictly with a party applying ex parte and who had misrepresented or suppressed material facts.
Applying the above principles to the facts of the case, the learned trial Judge at pages 203 to 204 held thus:-
“In as much as the plaintiff’s claim is as regards the validity of the said deed of debenture dated 11/12/95, the plaintiff must confine itself to that claim and no more. The defendants and the court cannot go beyond the plaintiff’s claim. The plaintiff does not have to plead or exhibit all the documents required to prove his case, it is sufficient if he exhibits the main document on which his claim revolves at this interlocutory stage. Therefore all the documents which the plaintiff was alleged to have suppressed from the court, are not relevant or material to the claim of the plaintiff, hence no case of suppression of material facts, has been established ….. ”
On its part the Court of Appeal, in its judgment at pages 280 to 281 of the record, held as follows; with regards to the issue of suppression of material facts:-
”The question of whether the respondent suppressed or misrepresented material facts that influenced the granting to it of the injunctive orders treads on the borderline of the substantive and interlocutory stage of the action. To which side of the divide the question swings will depend on the nature of the facts suppressed or misrepresented and the materiality of the facts in the sequence of occurrence that triggered off the supplication. What is advanced by the appellants as suppression or misrepresentation of facts is the validity of the Debenture Deed which is a springboard for the take over of the respondent’s business. That is a question that must be settled at the trial of the substantive action. The fallout of the take over is what led to the temporary relief of an interim injunction to contain injury or damage that was engendered by the take over. Therefore whether the respondent suppressed or misrepresented facts about the validity of the Debenture Deed belongs to the sphere of the substantive action. It is not necessary to consider it in examining the merit of the interlocutory relief. What fell to be considered in the respondent’s application was whether there had been established an injury of the magnitude justifying the relief sought and how to contain the damage or injury done to respondent’s business as a result of the take over.
The validity of the Debenture Deed would decide the key issue of whether the take over of the respondent’s assets and management of its business is justified and the forum for that deliberation is the trial of the substantive action that being the case to consider at the stage of an interlocutory application in the proceedings any question about the validity of the Debenture Deed is to anticipate the very issue that is the core of the dispute in the action. What called for consideration in the interlocutory application before the trial court was how best to salvage the respondent’s business which from the evidence believed by the court had gone into a sudden nose dive leaving the more fundamental question of whether the take over was justified which is bound up with the validity of the Debenture Deed to be determined in the substantive action.”
I had earlier in this judgment reproduced the reliefs claimed in the writ of summons which clearly vindicates the views held by the lower courts as to the substantive claim before the court and the materiality of the alleged suppressed or misrepresented facts to the said claim rather than to the grant of the ex parte application for an order of interim injunction. I have no hesitation whatsoever in coming to the conclusion that the Court of Appeal was right in holding as it did. I therefore have no reason to disturb that holding which in effect affirmed the finding of the trial court on the matter.
Once again we are faced with a very unfortunate situation in which an action commenced in February 1997 is yet to go beyond the stage of pleadings ten years after, due to interlocutory appeals on interim order of injunction. In the instant case, appellant kept on changing his case as to why the ex parte order of injunction ought to be discharged from one Court to the other. Meanwhile the substantive action still pends at the Federal High Court, Enugu when it would have benefited both parties if all the money and energy expended in pursuing the worthless appeals had been directed at the hearing and determination of the substantive action. Legal practitioners need to review their approach to legal practice particularly in company matters since the economy of Nigeria currently is private sector driven and needs our support and encouragement to create and sustain an enabling environment for it to grow properly.
In conclusion, I find no merit whatsoever in this appeal which is accordingly dismissed with N10,000.00 costs in favour of the respondent.
Appeal dismissed.
SC.80/2002