AMAECHI & ORS v. NWEKE-WORLU & ORS (2020)

AMAECHI & ORS v. NWEKE-WORLU & ORS

(2020)LCN/14505(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, July 16, 2020

CA/PH/67/2019

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

DR. SAMUEL AMAECHI 2. MR. CLINTON AMAECHI 3. CHIEF AMOS NWALA 4. MR. NICHOLAS UKONWA 5. MR. KINGDOM OBIA 6. MR. SAMUEL OKERE (For Themselves And Representing Umuokwa- Edegelem Community, Igbo-Etchie LGA Of Rivers State) APPELANT(S)

And

ELDER IWEZOR NWEKE-WORLU 2. MR. EMMANUEL NWEKE-WORLU 3. MR. GIFT NWEKE-WORLU 4. MR. OSCAR CHIZOBA WELI (For Themselves And Representing Avuha Family Of Rumuohiorlu Community Eneka In Obio/Akpor L.G.A. Of Rivers State) 1ST SET OF RESPONDENTS SAIPEM CONTRACTING NIGERIA LIMITED 2ND SET OF RESPONDENTS RESPONDENT(S)

RATIO

THE ESSENCE OF A MOTION ON NOTICE

In essence, what the Motion on Notice was designed to do was to prevent the delivery of the ruling of motion for Interim Injunction by the learned trial Judge. This is illegal and unsupported by the rules of Court. See UKACHUKWU vs. PDP & ORS 2013 (2014) ALL FWLR (pt. 728) p. 887; NEWS WATCH COMMUNICATIONS LTD vs. ATTA (2006) 12 NWLR (pt. 993) 144 at 178-179. PER AWOTOYE, J.C.A.

THE PRINCIPLES GOVERNING THE GRANT OF INTERLOCUTORY INJUNCTION

The principles governing the grant of Interlocutory Injunction have been rightly stated by learned Counsel on both sides and by the learned trial Judge.
The Supreme Court explained the principles clearly in ADELEKE & ORS vs. LAWAL & ORS (2014) 3 NWLR (pt. 1393) p. 1, KUMAI AKA’AHS, JSC explained thus:
“In BUHARI vs. OBASANJO (2003) 17 NWLR (pt. 850) 587, this Court per Tobi, JSC spelt out the principles guiding the application of Interlocutory Injunction at pages 648-649 as follows: Some of the principles or factors to be considered in an application for Interlocutory Injunction are:
(1) There must be a subsisting action. See THE PRAYING BAND OF S&C vs. UDOKWU (1991) NWLR (pt. 182) 716.
2. The subsisting action must clearly donate a legal right which the Applicant must protect. See KOTOYE vs. CBN (1989) 1 NWLR (pt. 98) 419; WOLUCHEM vs. WOKOMA (1974) 3 SC 153; OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (1987) 3 NWLR (pt. 60) 325.
3. The Applicant must show that there is a serious question or substantial issue to be tried. See KOTOYE VS. CBN (supra); NIGERIA CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (pt. 12) 306; NWOSE VS. MBAEKWE (1973) JECSLR 136.
4. And because of (3) above the status que should be maintained pending the determination of the substantive action. See KOTOYE VS. CBN (supra); FOLLOWERS vs. FISHER (1975) 2 ALL ER 829; AMERICAN CYANAMID CO vs. ETHICON LTD (1975) AC. 396.
5. The Applicant must show that the balance of convenience is in favour of granting the application. See KOTOYE vs. CBN (supra); OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (supra); AKINLOSE vs. A.I.T. LTD (1961) WNLR 116.
6. The Applicant must show there was no delay on his part in bringing the application. See KOTOYE vs. CBN (supra).
7. The Applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect. See KOTOYE vs. CBN (supra); OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (supra).
8. The Applicant must make an undertaking to pay damages in the event of a wrongful exercise of the Courts discretion in granting the injunction. See KOTOYE vs. CBN (supra); ITAMA vs. OSARO (2000) 6 NWLR (pt. 661) 515.”PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by 1st set of Defendants at the lower Court against the decision of the Rivers State High Court delivered on 9/1/2019.

The Claimants had instituted an action against the Defendants claiming per paragraph 39 of their Statement of Claim as follows:
“Wherefore the Claimants claim against the Defendants jointly and severally as follows:
(1) A DECLARATION that the Claimants from Avuha family of Rumuichiorlu Community, Eneka in Obio/Akpor Local Government Area of Rivers State and not the 1st set of Defendants of Umuokwa Edegelem Community, Igbo Etche Local Government Area of Rivers State, are the owners of the large expanse of land known as and called “Okporo Avuha” lying and situate at Eneka in Obio/Akpor Local Government Area of Rivers State, wherein the 2nd Set of Defendants facilities are situate as will be shown in the Survey Plan of the land in dispute.
(2) A DECLARATION that the acquisition of a leasehold on the 1st day of August, 2011 over part of the land in dispute by the 2nd Set of Defendants from

the 1st Set of Defendants instead of the Claimants’ Avuha family is null and void and of no effect whatsoever, same having not been granted by the Claimants being the owners in possession and while this matter pending in the previous Court.
(3) AN ORDER directing the 2nd Set of Defendants to pay the sum of N30,000,000.00 (Thirty Million Naira) only, to the Claimants as sum due to the Claimants from the 2nd Set of Defendants for the use of the Claimants’ land for the duration of the lease.
In the alternative:
(4) AN ORDER directing the 1st Set of Defendants to pay over to the Claimants the sum of N30,000,000.00 (Thirty Million Naira) only being the sum received by the 1st Set of Defendants form the 2nd Set of Defendants for lease of the Claimants’ land.
(5) The sum of N50,000,000.00 (Fifty Million Naira) only being and representing general damages against the Defendants.
(6) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from committing further acts of trespass on the Claimants’ land.”

Later in the proceedings, the Claimants filed an application for Interlocutory Injunction. The

application was heard and a date was fixed for the ruling on the said application.
Before the said ruling was delivered, learned Counsel for the 1st set of Defendants who had earlier filed another Motion on Notice drawing the attention of the learned trial Judge to a sister case urged the Court to take judicial notice of the Writ of Summons in PHC/2748/2018 pending before another Judge which touches on the subject matter in the instant Suit.

The learned trial Judge in response ruled in response as follows:
“Court: I agree with learned Counsel for the Claimants that the purpose of the Motion of the 1st set of Defendants on 13/11/18 after the interlocutory injunction has been adjourned for ruling is to arrest the ruling. It is not permissible in law for parties to take steps in proceedings to arrest a ruling or judgment of a Court as the 1st set of Defendants tends to do in this suit. I therefore proceed to deliver my ruling.
Ruling: The application for interlocutory injunction filed on 28/5/2018 is granted. The substantive suit is adjourned to 31/1/19 for pre-trial conference, 11 am.”

In his ruling on the Motion for

Interlocutory Injunction, the learned trial Judge held as follows:
“On the whole, I find merit in this application. It is hereby ordered as follows.
(1) An Order of interlocutory injunction is hereby made restraining the 1st set of Respondents either by themselves or through their agents, assigns, servants, privies or whosoever acting through them from entering, excavating or further transferring any interest in the land in dispute called “Okporo Avuha” pending the determination of this suit.
(2) The Applicants shall enter into undertaking to pay the sum of N2,000,000.00 should this suit be found to be frivolous at the end.”

Miffed by this ruling, the 1st set of Defendants, now Appellants filed Notice of Appeal containing 4 Grounds of Appeal.

After transmission of Record of Appeal to this Court parties filed and exchanged Briefs of Argument.

SUBMISSIONS OF COUNSEL
APPELLANTS’ BRIEF OF ARGUMENTS
The Appellants’ Brief of Argument dated 19th day of February, 2019 and filed on 20th day of February, 2019 formulated four (4) issues for determination to wit:

Whether from the surrounding circumstances of this case, the failure of the learned trial Judge to hear and determine the Appellants’ Motion on Notice before granting the interlocutory injunction against the Appellants did not violate the Appellants’ right to fair hearing and therefore occasioned a miscarriage of justice? (Ground 1).
2. Whether having regards to the surrounding circumstances of this case, the learned trial Judge was right in granting the injunctive order against the Appellants on the ground that damages would not be an adequate compensation? (Ground 2).
3. Whether the learned trial Judge was right in granting the injunction against the Appellants without calling for oral evidence to reconcile the conflicts in the affidavit evidence of both parties? (Ground 4).
4. Whether the learned trial Judge did not pre-judge the substantive matter at the interlocutory stage when in granting the injunction against the Appellants/Defendants, he adopted, called and/or referred the land in dispute with the nomenclature or traditional name of the 1st set of Respondents? (Ground 5 though wrongly written as Ground 4 in the Notice of Appeal).

ISSUE 1
Whether from the surrounding circumstances of this case, the failure of the learned trial Judge to hear and determine the Appellants’ Motion on Notice before granting the interlocutory injunction against the Appellants did not violate the Appellants’ right to fair hearing and therefore occasioned a miscarriage of justice? (Ground 1).

Arguing this issue, learned Counsel to the Appellants stated that the law is trite that the refusal of a Court to hear a motion is a breach of the right to fair hearing granted under Section 36 of the 1999 Constitution and an essence of the audi alteram parterm rule of natural justice. Referred to Mobile Producing Nigeria Unlimited vs. Monokpo (2003) 18 NWLR (pt. 852) 346 at 413 paras. F-G. That the right to fair hearing cannot be waived or taken away as stated by the Supreme Court in Ovunwo vs. Woko (2011) 17 NWLR (pt. 1277) 522 at 555-556 paras. H-B.

Learned Counsel argued that in the instant case, during the hearing of the application for interlocutory injunction, Appellants’ Counsel pursuant to Section 122 of the Evidence Act, 2011, urged the trial Court to take judicial notice of the

originating process in the latter Suit PHC/2748/2018 filed by the 1st set of Respondents touching on the reliefs, subject matter of their application for interlocutory injunction and the substantive Suit PHC/2146/2017. Referred to paragraphs 3-7 of the Appellant’s affidavit in support of the motion filed on 13/11/2018 at pages 380-382 of the record.
It is further argued that at the instance of the Counsel to the 1st set of Respondents, the learned trial Judge disregarded the passionate appeal to take judicial notice of the said process on the grounds that the said Suit PHC/2748/2018 is not pending before him and that the originating process in the said Suit No. PHC/2748/2018 was properly brought before the Court. That in the overriding interest of justice, the Appellant filed a formal application seeking the learned trial Judge to take judicial notice of the originating process in Suit No. PHC/2748/2018 while considering the merit or otherwise of the substantive application for interlocutory injunction. That the attention of the learned trial Judge was drawn to the said motion by the Registrar for fixture before delivering his ruling on the

substantive application. Referred to pages 378 – 395 particularly at pages 396 of the record.
Learned Counsel contended that before the learned trial Judge delivered the ruling on the substantive application for interlocutory injunction on 9/1/2019, the Appellants’ Counsel drew Court’s attention to the pendency of the motion seeking the Court to take judicial notice of the originating process in Suit No. PHC/2748/2018.That the 1st set of Respondents admitted service of the said motion. That the learned trial Judge refused to hear the motion one way or the other on the ground that the motion was intended to arrest the ruling of the Court. Referred to page 399 of the record.

That from the sequence of events as contained in paragraphs 3-13 of the Appellants’ unchallenged affidavit in support of the said motion at pages 380-382 of the record argued learned Counsel, strenuous efforts was made by Appellants’ Counsel to place the originating process in Suit No. PHC/2748/2018 which was pending during the hearing of the substantive motion before the learned Judge for consideration and in the determination of the application for

interlocutory injunction. That piqued by the refusal of the leaned trial Judge to take notice of the said originating process, the Appellants filed a formal application.

It is submitted that a sober reflection and consideration of the sequence of events that proceeded or triggered the filing of the motion, will reveal that the motion was not intended to arrest the ruling of the learned trial Judge. That it merely, prayed the Court to take judicial notice of the reliefs in the Suits, PHC/2748/2018 and PHC/2146/2017 while determining the merit or otherwise of the substantive application for interlocutory injunction. That it is aimed at assisting the Court to do substantial justice as averred in paragraph 13 of the Record of Appeal. That the sequence of events that led to the motion constitutes extenuating exceptional circumstances which ought to have impelled the trial Court to take the motion before delivery of the ruling.

Learned Counsel to the Appellants further submitted that the learned trial Judge was wrong when he concluded by saying that the motion is intended to arrest the ruling of the Court without hearing the said motion. Referred to

Mobil Producing Unlimited vs. Monokpo (supra) particularly at page 431 paras. C-E, per Niki Tobi, JSC (of blessed memory). That guided by the above authority, the learned trial Judge ought to have taken or allow the Appellants move the motion first before coming to the conclusion that the said motion was to arrest the ruling. That the trial Judge could not have come to such conclusion without hearing the Motion.

That in fact and legal effect, learned Counsel argued; had the learned trial Judge taken judicial notice of the said process on the date of hearing the substantive application for injunction in line with Section 122 (1) (2)(M) and (4) of the Evidence Act, 2011 and the case ONWUKA VS. OWOLEWA (2001) NWLR (pt. 713) 695, para. H, which enjoined the Court to do so, the Appellants would not have filed a motion to that effect.

It is also the submission of learned Counsel to the Appellants that various judicial authorities avail and have laid down the principle of law that it is the duty of the Court to entertain and decide on the merit of any application brought before it notwithstanding the perceived strength or weakness of such application. Referred

to the authorities of Dingyadi vs. INEC (No. 1) (2010) 8 NWLR (pt. 1224) 1, at 52-53 paras. G-B ratio 5, Onyekwuluje vs. Animashaun (1996) 3 NWLR (pt. 439) 637 at 644 paras G-H, F.A.A.N. vs. W.E.S (Nig) Ltd (2011) 8 NWLR (pt. 1249) 219 at 237 paras D-F, Okoro vs. Okoro (1998) 3 NWLR (pt. 540) 65 at 74 and Ovunwo vs. Woko (supra) at p. 555 para. G. Finally, it is submitted that the learned trial Judge erred in law in refusing to hear the motion.

ISSUE 2
Whether having regards to the surrounding circumstances of this case, the learned trial Judge was right in granting the injunctive order against the Appellants on the ground that damages would not be an adequate compensation? (Ground 2).

It is contended on behalf of the Appellants that one of the principles for consideration in deciding whether or not to grant interlocutory injunction is whether if the Claimant/Applicant succeeds at the trial Court in establishing his case, damages would be adequate compensation and the Defendant would be in a financial position to pay. That if answered in the affirmative, injunction should not be granted, however strong the Claimant’s claim may appear to be

at that stage. Counsel craves in aid the authorities of Bakare vs. Bakare (2012) 16 NWLR (pt. 1325) at P. 29 esp. at p. 47 paras. G-H, Ilechukwu vs. Iwugo (1989) 2 NWLR (pt. 101) 99 at 106 and Adeleke vs. Lawal (2014) 3 NWLR (pt. 1393) 1 at 30.

It is further contended that in the instant case, the res is land which is always there and can always be quantified in monetary compensation or damages as remedy. Submitted that the learned trial Judge was wrong in granting the injunctive order by his holding copied at page 412 of the Record of Appeal. That the land is used for construction cannot be irredeemably lost. That it is trite that the party that emerged victorious at the end of trial becomes the owner of the structures/construction on the land on the doctrine of quic quid plantatur solo, solo cedit and this reserves the exclusive right to either use the building on the land or pull it down for agricultural or farming purposes. Referred to Adeleke vs. Lawal (supra) p. 24, para. C.

The Appellants’ Counsel submitted that the 1st set of Respondents did not depose to any fact that the Appellants would not be able to compensate them in the unlikely

event that the 1st set of Respondents succeed at the end of the trial. Cited the case of Bakare vs. Bakare (supra) at p. 47, paras.G-H, per Iyizoba, JCA. That in the instant case, there was no evidence that the Appellants would not be able to pay, in the unlikely event that the 1st set of Respondents succeeds in establishing their case. That the learned trial Judge ought to have ordered for accelerated hearing of this case as have been directed by this Court and the apex Court in litany of cases. Referred to the cases of Obijuru vs. Anokwuru (2001) 17 NWLR (pt. 743) 685 at 704 and Onyesoh vs. Nnebedun (1992) 3 NWLR (pt. 229) 315 at 342.

The Appellants herein posited that contrary to the holding of the learned trial Judge, evidence abound to show that damages will be enough to compensate the 1st set of Respondents. That in the latter Suit PHC/2748/2018, the 1st set of Respondents filed in respect of the land in dispute, they sought for damages of N342,000,000.00 (Three Hundred and Forty Two Million Naira) as endorsed on the Writ of Summons annexed to the affidavit in support of the motion filed by the Appellants as contained in page 384 of the Record of

Appeal. That by their relief ii in Suit No. PHC/2748/2018, the 1st set of Respondents have shown that damages would compensate them. Submitted that the learned trial Judge ought not to have granted the injunctive order, if he had taken judicial notice of the Writ of Summons in Suit PHC/2748/2018 or heard the Appellants’ Motion to that effect.

ISSUE 3
Whether the learned trial Judge was right in granting the injunction against the Appellants without calling for oral evidence to reconcile the conflicts in the affidavit evidence of both parties? (Ground 4).

It is the argument of the learned Counsel to the Appellants that various judicial pronouncements avail and have laid down the principle that where a substantive application for injunction is heard, there is bound to be conflicting affidavit. That the trial Court must call for oral evidence where the issues will be resolved. Cited the cases Adeleke vs. Lawal (supra) at p. 31 and Group Danone vs. Voltic (Nig.) Ltd (2008) 7 NWLR (pt. 1087) 637 at 675, paras. G-H.

It is further argued that in the instant case, as borne out by records, the Appellants averred and forcefully contended that

the 1st set of Respondents, that brought the application for injunction have soiled their hands by building on the land in dispute and hiring the services of Elysian Properties Ltd, Port Harcourt to plot and sell the land in dispute. Referred to pages 292-306 of the record. That the 1st set of Respondents in their re-action contended at page 5 of their Further Affidavit copied at pages 328 of the Record of Appeal that the situation is not as portrayed by the Appellants.

Submitted that paragraphs 3, 10(b) (e) (f) of the Appellants’ counter affidavit and paragraphs 5 and 13 of the 1st set of Respondents’ further affidavit are irreconcilably in conflict. That oral evidence has shown whether or not the photographs (Exhibits A1-A9) were taken of the land in dispute. That it would have equally shown whether or not the 1st set of Respondents are tampering with the land in dispute. That in order to demonstrate fidelity to the Appellants’ averments and contention that the 1st set of Respondents that sought for injunction are tampering with the land in dispute, that the Appellants, in their written address invited the Court to visit the locus to

see the manner the 1st set of Respondents are tampering with the res. Referred to pages 325 of the record. That the said visit to the locus would have helped the Court to call for oral evidence to reconcile the issue. That the 1st set of Respondents in paragraph 29 of their Statement of Claim copied at page 10 of the record admitted selling portion of the land in dispute.

Learned Counsel to the Appellants further contended that from the affidavit evidence of the parties, there is a serious conflict. That the Appellants accused the 1st set of Respondents of being responsible for the construction of building on the land while the 1st set of Respondents contended that the said photographs were not taken from the land in dispute.

Submitted that the learned trial Judge was under obligation to call oral evidence to settle the conflict arising from the affidavit and Counter-affidavit evidence of parties with a view to determining whether the 1st set of Respondents who sought for this injunction have not soiled their hands by tampering with the res during the pendency of the Suit. Counsel sought refuge in the cases of Group Danone vs. Voltic (Nig.) Ltd (supra)

and Nalsa Team Associate vs. N.N.P.C (1996) 3 NWLR (pt. 439) 621 at 627, paras. G-H. Submitted further that since injunction is an equitable remedy, the Court most satisfy itself that the Applicant, the 1st set of Respondents herein come with clean hands for the Court to exercise its discretion in his favour.

ISSUE 4
Whether the learned trial Judge did not pre-judge the substantive matter at the interlocutory stage when in granting the injunction against the Appellants/Defendants, he adopted, called and/or referred the land in dispute with the nomenclature or traditional name of the 1st set of Respondents? (Ground 5 though wrongly written as “Ground 4” in the Notice of Appeal).

On the above issue, learned Counsel stated that Courts are enjoined by judicial authorities to refrain from making comments and pronouncements that suggest that the substantive matter has been prejudged at the interlocutory stage. That to do otherwise is to prejudge the matter of which evidence is yet to be led. Cited Adeleke vs. Lawal (supra) at p. 21, paras.G-H and Anibabe vs. Badego (2013) 5 NWLR (pt.1346) 42 at 61 para. B. That in the instant case,

the 1st set of Respondents called the land in dispute “Okporo Avuha”. While on the other hand, the Appellants called the land in dispute “Okwumiri” or “Okpigra”. Referred to pages 7 and 272 and 99 and 293 respectively of the Record of appeal.

Counsel posited that the learned trial Judge equally made this observation when he found as fact on page 408 of the Record of Appeal that the 1st set of Respondents call the land in dispute “Okporo Avuha” whereas the Appellants herein call it “Okwumiri” or “Okpigra”. That regrettably, in dishing out hid injunctive order against the Appellants, the learned trial Judge called, referred and/or adopted the 1st set of Respondents’ traditional name or nomenclature of the land “Okporo Avuha” which suggests or presupposes that the learned trial Judge has prejudged the matter in which evidence is yet to be led.

It is the contention of the Appellants that the issue of whether the land in dispute is called “Okporo Avuha” or “Okwumiri” or “Okpigra” ought to have been determined at the end of trial.

That the issue is incidental or connected with the issue of title. That parties by their respective pleadings joined issues on the nomenclature or traditional name of the land in dispute. That the adoption of the 1st set of Respondents’ nomenclature or traditional name of the land in dispute by the learned trial Judge at this stage is premature. That the learned trial Judge exceeded the bounds of fair adjudication at the interlocutory level. That there must be on record how the learned trial Judge after his ruling arrived at the conclusion or adoption of the 1st set of Respondents’ traditional name in preference to the Appellants’ traditional name at the interlocutory stage.

Appellants submitted that the learned trial Judge made pronouncements or observation that presupposed that he had prejudged the matter. That the use or adoption of the name “Okporo Avuha” by the learned trial Judge leaves every reasonable man with the irresistible conclusion that the Court below has prejudged the matter when evidence is yet to be led in the matter. That by adoption of the 1st set of Respondents’ traditional name of the land in

dispute, “Okporo Avuha”, it means the issue of title has been partly or partially determined in favour of the 1st set of Respondents at the interlocutory stage. That if this were not so, the learned trial Judge ought to have used the words “the land in dispute” only in describing or qualifying the injunction without adding or using the 1st set of Respondents’ nomenclature. Urged the Court to set aside the injunctive order made against the Appellants on this score.

It is further contended on behalf of the Appellants that the learned trial Judge reiterated that the essence of interlocutory injunction is to preserve the res, hence, he restrained the Appellants from entering the land in dispute which he called “Okoro Avuha” despite the strong allegation that the 1st set of Respondents are building on the land in dispute. Submitted that by restraining the Appellants and adopting the 1st set of Respondents’ nomenclature or traditional name of the land in dispute, the learned trial Judge has invariably or expressly permitted the 1st set of Respondents to continue in tapering with the land in dispute. That the

injunctive order in this case is not intended to preserve the res. That it is like saying, “robbing Peter to pay Paul” or “unclothing Peter to cloth Paul”.

Finally, it is the submission of the Appellants that the order of the learned trial Judge has the opposite of the effect of interlocutory injunction which is to preserve the res. That the learned trial Judge would have ordered for the accelerated hearing of this case and advised both parties against tampering with the res as held by this Court in Bakare vs. Bakare (supra) at p. 50 paras. B-C, per Kekere-Ekun, JCA (as he then was). Urged this Court to allow the appeal, set aside the injunctive order of the lower Court and grant an accelerated hearing of the Suit.

1ST SET OF RESPONDENTS’ BRIEF
The 1st set of Respondents’ Brief of Argument is dated and filed on the 20th day of September, 2019. Learned Counsel to the 1st set of Respondents distilled a sole issue which according to him encompasses the four issues proliferated by the Appellants’ Counsel. The issue read thus:
Whether the trial Court was right in granting an order for interlocutory

injunction against the Appellants based on the facts and circumstances of this case?

It is submitted that the Court of law guide and guard their authority jealously and would not shirk its responsibility in ensuring that parties that have willingly submitted to the jurisdiction of the Court do not wittingly or unwittingly undermine its authority. That one of the ways by which Courts maintain discipline while adjudicating over a matter before it is through grant of injunctive reliefs in order to prevent a party from dissipating or changing the character of the subject matter before it, such that at the end of the day a successful party does not go home with empty victory.

Counsel argued that injunction is aimed at preserving the res of the Suit so that at the end of the day a victorious party will go home feeling that justice has been done in the case. That for a Court to grant an injunctive relief interlocutorily, certain factors must be present and certain conditions must be fulfilled by an Applicant. Submitted that the trial Court was alive to its responsibilities as it considered the factors necessary for the grant of an injunction in this case.

That apart from stating the factors to be considered, the trial Court took time to consider whether each of the factors were present in this case.

On whether there is a serious question to be tried, Counsel argued that the trial Judge made reference to various paragraphs of the affidavit before coming to the conclusion that there are triable issues in the substantive matter. That in sum, there was a finding that there is a threatened violation of the 1st set of Respondents’ right. That this finding accord with the decision of the superior Courts. Cited Akapo vs. Hakeem-Habeeb (1992) 7 SCNJ (pt. 1) 119 at page 138. That the Appellants entered the land while this matter was in Court and sold part thereof. Referred to paragraphs 9, 10, 11, 12, 13 and 14 of the 1st set of Respondents’ affidavit in support of motion copied at pages 273-274 of the record and compared same with paragraphs 4, 5, 9(d)(e), 10(c) 11(a)(b) at pages 294-296 of the record.

It is also argued that in a situation wherein the Appellants had admitted entering the land while the matter is still in Court, that there is nothing left to the Court to do other than grant the 1st

set of Respondents’ application as a threatened violation of the Respondents’ right had been established by the admission of the Appellants. That the law is that facts admitted needs no further prove. Referred to Sections 20 and 21 of the Evidence Act, 2011.That the Appellants and their agents with the aid of Military men cleared the land while this matter was in Court. Referred to paragraph 9 of the 1st Set of Respondents’ affidavit at pages 273 and 275-283 of the record showing the lease agreement made between the Appellants and the 2nd set of Respondents and pages 284-286 of the record.

Learned Counsel to the 1st Set of Respondents drew the attention of the Court to pages 313-318 of the record in which the Appellants’ counter-affidavit at the lower Court showing for the first time that indeed the Appellants sold part of the land while this matter was still pending in Court. Counsel further referred to 1st set of Respondents’ further affidavit at pages 327-329 especially pages 328 paragraph 9, pages 331-332 of the record which is an order of Court for parties to maintain status quo. Submitted that while the suit was pending,

the Appellants purportedly sold part of the subject matter in June, 2016 despite the said order for parties to maintain the status quo. That the trial Judge had no option than to grant the injunction. That this was in the basis of the 1st set of Respondents’ right being threatened and that hence the existence of triable and serious issue which the Court can only determine during trial.

On whether the balance of convenience was in favour of the 1st set of Respondents and whether damages will be adequate remedy, it is submitted that the trial Court did not only find that there is a serious issue to be tried and which was being threatened by the Appellants, that the Court also considered the issue of balance of convenience and found that it was in favour of granting the application than refusing it. That the 1st set of Respondents in paragraph 11-13 of their affidavit copied at pages 273-274 of the record deposed that the Appellants had entered the land in dispute and clearing the same for purposes of erecting concrete structure on the land that is being preserved for farming purposes only and that damages will not be adequate compensation.

It is submitted that Appellants never denied the said averments on paragraphs 11-13 of the 1st set of Respondents’ affidavit in support of motion. That rather, the Appellants in paragraphs 11-13 of their counter-affidavit, when read together with paragraphs 4, 10(c)(d)(e) and (g) of the same amount to an admission that the land being preserved for farming purposes was being cleared by Appellants to erect concrete structures. That it was the content of the Appellants’ (1st set of Respondents at the Court below) which titled the balance of convenience in favour of the grant of the application as shown in the ruling of the lower Court at page 411 of the record. That there is no way a land used for farming can be returned back for that purpose if it is allowed by the Courts for concrete buildings to be erected thereon. That this is a proper case for which injunction should lie. Referred to the cases of Adewale vs. Ekiti State Governor (2007) 2 NWLR (pt. 1019) 634 at 652-653, paras. H-C and Dekit Const. Co. vs. Adebayo (2010) 15 NWLR (pt. 1217) 590 at 609-610, paras.G-H. That it was appropriate for the trial Court in this case to grant the injunction not only

to preserve the res but also to ensure that the character of the land does not change.

On the issue of whether damages will be adequate compensation as argued by the Appellants under issue No. 2 of their brief and the reliance on the case of Adeleke vs. Lawal (2014) 3 NWLR (pt. 1393) 1 at 24 para. C. It is submitted that the fact and circumstances in Adeleke’s case and the present case are different in that in the first place, there was uncertainty as to the area of land for which injunction is sought in Adeleke’s case but that it is not the situation in the instant case.

Secondly, that while the land in dispute in Adeleke’s case was said to be farm land according to the Applicant; that there was no averment in the Respondents’ counter affidavit admitting or cleared preparatory for erection of concrete buildings unlike the present case where there is an admission by the Appellants that it is being cleared for continuation work.

Learned Counsel argued that the case of Adeleke is not applicable in this case. Cited FHA vs. Emelie (2013) 3 NWLR (pt. 1342) 478 at 498-499 paras H-A, which according to him is in tandem with the

earlier decision of this Court in Victory Merchant Bank vs. Pelfaco Ltd (1993) 9 NWLR (pt. 317) 340 at 355, paras F-G. Submitted from above decision of this Court, it is apparent that the trial Judge was right in granting the injunction without going into details as to whether or not the Appellant has the capacity or not to pay for damages. Urged this Court to affirm the decision of the trial Court.

On Whether the 1st set of Respondents are guilty of delay and whether their conduct is reprehensible, it is submitted that the 1st set of Respondents brought their application before the lower Court timeously and that their conduct as well was not in any way reprehensible as to warrant the trial Judge to refuse the grant of the 1st set of Respondents’ application. That the learned trial Judge was very mindful of the position of the law and that he x-rayed the affidavit of both parties and came to the conclusion that the 1st set of Respondents’ conduct were neither reprehensible nor was there a delay in bringing the application.

It is further submitted that if there is any party whose conduct is reprehensible, that party are the Appellants.

That this is so because the Appellants contrary to the order of Court made on 19th February, 2016, in PHC/1080/2013 before it was struck out, that parties are to maintain the status quo; the Appellants sold part of the land in dispute to a third party. That it was the Court who made the order striking out the suit on 31/7/2019 that the 1st set of Respondents filed Suit PHC/2146/2017 between the same parties, the same subject matter. That the sale of the land by the Appellants on their own admission as contained in their counter-affidavit and the Exhibit attached thereto was made in June, 2016 after Thompson J. had ordered parties to maintain the status quo. Referred to pages 313-318 of the record. Learned Counsel sought refuge in the case of Akapo vs. Hakeem-Habeeb (supra) 139.

Submitted that the trial Judge was right in granting the Respondents’ application. That to refrain from granting it will amount to condoning the Appellant’s disobedience of the order of Court for parties to maintain status quo. That the Court granted the order because the 1st set of Respondents’ conduct had not been found to be reprehensible. Learned Counsel

pointed out that the Appellants are habitual in their disregard and disdain of process of law. That the Appellants on several occasions had interfered with the subject matter in the suit and that this is proper case of for this Court to affirm the ruling of the trial Court.

On the issue of whether the purported failure of the trial Judge to hear and determine the Appellants’ Motion on Notice before granting the order of interlocutory injunction violated the Appellants’ right to fair hearing. It is submitted that the Appellants’ Counsel submission on the issue is misconceived. That Appellants’ Counsel in his brief at page 5 paragraphs 0.01-0.14 did not tell the whole truth as to what transpired in Court. That the true position of the matter is that the 1st set of Respondents filed their Motion for interlocutory injunction in 28th May, 2018.That on the 9th of October, 2018 argument were taken and reserved for ruling for 22nd November, 2018. That on 13th November, 2018 after the ruling has been reserved, the Appellants filed a motion praying the Court to take judicial notice of a matter pending before another Judge.

Learned Counsel posited that the Court did not sit on the 22nd November, 2018 and the matter was then adjourned to the 9th January, 2019 off record. Then when the trial Judge was about delivering the ruling on the 9th January, 2019, that the Appellants’ Counsel jumped up to inform the Court that there is a pending motion. That the Court should hear the motion before delivering the ruling. That the Counsel to the 1st set of Respondents objected on the ground that the insistence of Appellants’ Counsel for his Motion not fixed for that day to be taken tantamount to arresting the ruling of the Court. That the trial Judge agreed with the submissions of the 1st set of Respondents and proceeded to deliver the ruling.

Submitted that being that the application was not fixed for the day and that same was filed only after the Court had adjourned for ruling, the attempt by Appellants’ Counsel to stampede the Court into taking the Motion and ruling already fixed for that day amounts to an attempt to arrest the ruling of the Court which procedure is not known to our law. Referred to Newswatch Comm. Ltd vs. Atta (2006) 17 NWLR (pt. 993) 144 at 179, paras. E-F and

Bob-manuel vs. Briggs (1993) 7 NWLR (pt. 409) 537 at 552 para. H. That the Court was right in consigning the Appellants’ booby trap to the dust bin and went ahead to deliver its ruling. That in such situation, Appellants cannot complain of lack of fair hearing.

On whether the trial Judge was right in granting the injunction without calling for oral evidence to reconcile the conflicts in the affidavit evidence of both parties, it is submitted that contrary to the views of the Appellants’ Counsel, there is no conflict in the affidavit of the parties. That the 1st set of Respondents sought injunctive relief on the premise that while the matter was pending in Court, the Appellants has gone ahead to sell part of the land and are clearing the bush which the 1st set of Respondents has reserved for farming. That the Appellants by their paragraphs 4, 10(c)(d) and (g) admitted that they sold part of the land as copied at pages 293 and 295 of the record. Referred to pages 313-318 of the record containing the Deed of Conveyance executed between the Appellants and a third party. That that being the state of affairs, there is no conflict in the affidavit of the parties

requiring oral resolution by the trial Court. Cited the case of Ola vs. UniIlorin (2014) 15 NWLR (pt. 1431) 453 at 472, paras. F-G.

Learned Counsel contended that assuming but not conceding the fact that there is such conflict, that the law is that such conflict should not be resolved at that stage when facts are fluid. Referred to the cases of Victory Merchant Bank vs. Pelfaco Ltd (supra) at 353-354, paras. H-A and Obeya Memorial Hospital vs. A.G Federation (1987) 3 NWLR (pt. 60) 635 at 338 paras. G-H, 339 paras D-E. Submitted that the trial Court was right in not calling any oral evidence to resolve any none existing conflict in the affidavit of the parties. That assuming without conceding that there exist any conflict, that the learned trial Judge was right in not going into such as that could not have been done without straying into the substantive matter.

On the issue of whether the trial Judge in referring to the issue in dispute in the name used by the 1st set of Respondents “OKPORO AVUHA” did not amount to pre-judging the substantive matter at interlocutory stage? (Appellants’ Issue iv). It is submitted on behalf of the 1st Set of

Respondents that contrary to the argument and submissions of the Appellant’s Counsel, that the trial Judge did not in any way pre-judge the substantive matter. That the fact that the trial Judge in his ruling referred to the land in dispute as “Okporo Avuha” did not in any way indicate that the trial Judge had delved into the substantive matter.

It is further submitted that the Appellants’ Counsel did not point out whether the trial Judge reviewed evidence or referred to the pleadings of the parties or even depositions already filed by the parties. That for a Court to be said to have delved into the substantive matter of a case, that Court must have made pronouncements one way or the other on the contending issues between the parties. That at page 243 of the record containing Count VI of the Charge in COP vs. Irechukwu & 2 Ors, at Line 5, the farm land was described by the Commissioner of Police as “Okporo Avuha”. That in the judgment convicting the accused persons who are members of the Appellants’ community for conduct likely to cause breach of peace by entering the land, the learned Magistrate referred to

the farm land as “Okporo Avuha” in his judgment.

Counsel contended that there exist a judgment of a competent Court of record referring the land by a particular name. That there was nothing wrong in the Judge using the same name. Argued further that the Appellants’ Counsel cited the cases of Adeleke vs. Lawal (supra) and Anibade vs. Badego (supra) in support of his argument. Submitted that the authorities cited cannot avail the Appellants in this case. That the principle in these cases does not support its case and are inapplicable to the facts of the instant case.

It is submitted that at best the use of the phrase “Okporo Avuha” in the ruling can be described as a slip. That it is not every slip that can lead to a miscarriage of justice. That it is only a slip by a trial Judge that lead to miscarriage of justice that an appellate Court can intervene and upturn. That where the contrary is the case, an appellate Court will not interfere. Cited ACN vs. Nyako (2015) 18 NWLR (pt. 1491) 352 at 390, para. C, Ezenwaka vs. Okon (2017) 1 NWLR (pt. 1547) 389 at 407, paras. C-D. Urged this Court not to interfere with the ruling of

the trial Court which he did judicially and judiciously.

Urged Court to dismiss the appeal with cost and affirm the ruling of the trial Court.

APPELLANTS’ REPLY BRIEF
The Appellants’ Reply Brief settled by V. C. Macfrido, Esq. is dated and filed on the 23rd day of September, 2019 in response to the Respondents’ Brief. Learned Appellants’ Counsel in reaction to the 1st set of Respondents submission as contained in paragraphs 8.0 to 8.4 of the 1st set of Respondents’ brief to the effect that the attempt by the Appellants’ Counsel to “stampede” the Court into taking the motion before delivering the ruling already fixed for the day amounted to an attempt to arrest the ruling of the Court. It is submitted that the prevailing practice and policy of this Court is that a motion filed before an already prepared judgment or ruling must be given a hearing. Relied on the decision of this Court, Enugu Judicial Division in Agbu vs. Agbu (2007) 1 NWLR (pt. 1016) 528 at 537, paras. F-C. That the instant case is on all fours with the Agbu’s case. Relied further on the Supreme Court case of Ibator vs. Barakuro

(2007) 9 NWLR (pt. 1040) 475 at 502, para. G. That the 1st set of Respondents’ submission is misconceived and should be discountenanced.

In response to paragraph 10.4 of the 1st set of Respondents’ Brief, where the learned Counsel referred to the charge sheet in C.O.P vs. Irechukwu & 2 Ors and argued that the Commission of Police referred to the land in dispute as “Okporo Avuha”. Learned Counsel submitted that the law is firmly settled that a record of Criminal proceedings is inadmissible in civil proceedings. Relied on the case of Abubakar vs. Joseph (2008) 13 NWLR (pt. 1104) 307 at 363 and urged the Court to discountenance the argument and submissions on this score.

Appellants’ Counsel also debunked the argument and submissions of the 1st set of Respondents as contained in paragraph 10.4 on page 13 of their brief in respect to the reference to the judgment of the Magistrate Court on the ground that it is extraneous to this appeal. Submitted that the law is trite that parties are bound by the record of appeal and any extraneous facts not contained therein are mere conjuncture of the party and ought to be struck out.

Referred to authority of Onabanjo vs. Sheriff High Court of Justice (2009) LPELR-8284 (CA).

Urged Court to strike out paragraphs 10.04 and 11.0(c) of the 1st set of Respondents’ Brief on the ground that they are extraneous to the Record of Appeal. That moreso, the argument in paragraph 11.0(d) of the 1st set of Respondents’ brief did not flow from any of the valid issues formulated.

On the issue of balance of convenience as formulated and argued by the 1st set of Respondents in paragraph 5.0 at page 5 of their brief, it is submitted on behalf of the Appellants that such issue did not relate to any of the ground(s) of appeal and that any issue that does not relate to the ground(s) of appeal ought to be struck out. Referred to Obiegbu vs. UniAbuja (2005) 9 NWLR (pt. 930) p. 310. Submitted further that the law is trite that a Respondent who did not file a cross-appeal or a Respondent’s Notice cannot formulate issue(s) for determination not covered by the Appellant’s grounds of appeal. Learned Counsel sought refuge in the authority of Jatau vs. Ahmed (2003) 4 NWLR (pt. 811) 498 at 508.

It is further submitted on behalf of the Appellants that the 1st set of Respondents’ Counsel does not have the unbridled freedom to formulate issues for determination which has no bearing or relevance to the ground of appeal filed by the Appellants. Urged Court to strike out the said issue as well as the issue formulated in paragraph 7.0 at page 9 of the 1st set of Respondents’ Brief and all argument and submission flowing therefrom. Referred to Chami vs. UBA Plc (2010) LPELR-841 (SC).

Learned Appellants’ Counsel contended that contrary to the argument canvassed by the learned Counsel to the 1st set of Respondents in paragraphs 4.6 to 4.9 of their brief, that this appeal arose from Suit No. PHC/2146/2017 and not Suit No. PHC/1080/2013 which was voided by the Court on the fundamental ground that the Writ of Summons was not signed by the Claimants (1st set of Respondents herein). Referred to pages 361-367 of the record. That Suit No. PHC/2146/2017 which gave rise to this appeal was filed on 3/7/2017 whereas the Appellants sold part of the said land in June, 2016 before Suit No. PHC/2196/2017 was filed.

It is also submitted on behalf of the Appellants

that the Counsel to the 1st set of Respondents cannot rely on the purported order of status quo in Suit No: PHC/1080/2013 when the suit and the proceedings were declared void by the same Court. Relied on the immortal dictum of Denning, MR in Mcfoy vs. U.A.C (1961) 3 WLR (Pc) 1405 at 1409. That notwithstanding the above argument, that the issue canvassed in paragraphs 4.5 – 4.9 of the 1st set of Respondents’ Brief did not emanate from any of the grounds of appeal. Urged Court to strike out the said issue.

Learned Appellants’ Counsel drew Courts’ attention to paragraphs 8.3, 8.4 and 8.5 of the 1st set of Respondents’ Brief wherein he stated that learned Counsel to the 1st set of Respondents employed crude, unkind and impolite statements against the Appellants’ Counsel. Submitted that such words or statements are aimed at portraying or painting fellow Counsel in bad light and ought to be condemned by the Court. Referred to page 399 of the record.

Learned Appellants’ Counsel submitted that he maintained a high degree of decorum in praying the trial Court to hear his motion. That the use of words like

“stampede” and “booty trap” ought not to be used in disabling the Appellants’ Counsel. Placed reliance on the case of FHA vs. Nurudeen Adewale & Bros (Nig) Ltd (2017) LPELR-42821 (CA).

Learned Counsel urged this Court to discountenance all legal arguments and submissions of the 1st set of Respondents and accordingly set aside the proceedings of the lower Court and order for the re-assignment of the suit to another Judge for trial as done by this Court in Agbu vs. Agbu (supra).

RESOLUTION OF ISSUES
A. A. Amadi, learned Counsel for the Appellants identified 4 issues for determination in the Appellants’ Brief. They 4 issues are:
5. Whether from the surrounding circumstances of this case, the failure of the learned trial Judge to hear and determine the Appellants’ Motion on Notice before granting the interlocutory injunction against the Appellants did not violate the Appellants’ right to fair hearing and therefore occasioned a miscarriage of justice? (Ground 1).
6. Whether having regards to the surrounding circumstances of this case, the learned trial Judge was right in granting

the injunctive order against the Appellants on the ground that damages would not be an adequate compensation? (Ground 2).
7. Whether the learned trial Judge was right in granting the injunction against the Appellants without calling for oral evidence to reconcile the conflicts in the affidavit evidence of both parties? (Ground 4).
8. Whether the learned trial Judge did not pre-judge the substantive matter at the interlocutory stage when in granting the injunction against the Appellants/ Defendants, he adopted, called and/or referred the land in dispute with the nomenclature or traditional name of the 1st set of Respondents? (Ground 5 though wrongly written as Ground 4 in the Notice of Appeal).

Lawrence S. Oko-Jaja, Counsel for the 1st set of Respondents however formulated one sole issue for determination to wit:
Whether the trial Court was right in granting an order for interlocutory injunction against the Appellants based on the facts and circumstances of this case?

I have deeply considered the issues as formulated. I am of the sincere view that the sole issue formulated on behalf of the 1st set of Respondent is apposite and wide

enough for the determination of this appeal. I therefore adopt it and shall determine this in the light of the sole issue.

SOLE ISSUE
Whether the trial Court was right in granting an order for interlocutory injunction against the Appellants based on the facts and circumstances of this case?

I shall consider this issue under the following sub-heads:
(1) Should the learned trial Judge have ignored the Appellants’ Motion on Notice before granting the application for interlocutory injunction?
(2) Was the order of interlocutory injunction rightly granted?
(i) The learned trial Judge gave reasons for ignoring the Appellants’ Motion on Notice. His Lordship stated that it was a step designed to arrest a ruling or a judgment of a Court which was not permissible in law.

The contention of the Appellants is that this constituted an infringement of their rights to fair hearing. Learned Appellants’ Counsel relied on MOBIL PRODUCING (NIG) UNLIMITED VS. MONOKPO (2003) 18 NWLR (pt. 852) p. 346 at 413, where NIKI TOBI, JSC of the blessed memory opined thus:
“It is remarkable that the learned trial Judge concluded

by saying that because the second motion is an abuse of Court process, he “will not allow such application.” In my humble view that conclusion was not available to the learned trial Judge when he has not taken the Motion. He ought to have taken the Motion before holding that he “will not allow such application.
Whether a trial Judge thinks that a Motion is an abuse of the Court process? He is under a legal duty to allow the Applicant move the Motion that the trial Judge can rule that it is an adverse of the Court process. A Judge has no right to come to the conclusion that a Motion is an abuse of Court process without hearing it.”

What was the Motion on Notice about? It was for the Court:
“to take judicial notice of the Writ of Summons in Suit No. PHC/2748/2018 BETWEEN THE Claimants, some of the 1st set of Defendants in this suit and N.N.P.C. (PHC) CT & CS LTD which touches the Claimants’ Interlocutory application for injunction in this suit”

Paragraphs 4-9 of the affidavit in support of the application are very instructive in support of the Motion on Notice. They read thus:

“(4) When I read the said process, I was shocked to see that the Claimants in this suit filed another suit on the same subject matter in this suit against the 3rd Defendant and other representatives of Umunwala Family of Umuokwa Community of Edegelem who are also parties in this present Suit as well as NNPC (PHC) CT & CS LTD in Suit PHC/2748/2018 pending before Hon. Justice S. O. Benson sitting at High Court 18 Port Harcourt. The Certified True copy of the Writ of Summons and the Statement of Claim is herewith annexed and marked as “EXIHIBIT A”.
(5) Consequently, I handed over the said originating process to our Counsel while he was on his feet arguing against the grant of the Claimant’s application for Interlocutory Injunction.
(6) I know as a fact that during the said proceedings of 09/10/2018, our Counsel informed the Court that the Claimants filed another Suit against the 1st set of Defendants touching on the Motion for Injunction and the subject matter in this suit.
(7) I know as a fact that our Counsel urged the Court to take judicial notice of the Writ of Summons in the said Suit No. PHC/2748/2018 but he was overruled at the

instance of the Claimants’ Counsel on the ground that the said Writ of Summons was neither before this Court nor properly brought before this Court.
(8) The 3rd Defendant on record who is about 108 years informed me at his house on 10/10/2018 by 9 a.m. and I verily believe him that he was served with the said process, as a result of his extreme old age, educational background and health challenge, he felt the said process was meant for this present suit, hence he sent Mr. Kenneth Nwankwoala to hand it over to our Counsel in Court in the early hours of 09/10/2018.
(9) It is now expedient and necessary to produce/exhibit the Writ of Summons in Suit No. PHC/2748/2018 so that this Court can take judicial notice of the fact that the Claimants filed another Suit against the 3rd Defendant and some of the 1st set of Defendants as well as NNPC (PHC) CT & CS LTD whom they brought to restrain by their interlocutory application for Injunction pending before this Honourable Court.”

It is clear from the above that this application did not raise a new issue as at the time it was sought to be moved.

The question to ask is; did the lower Court hear the parties on the application? I am of the respectful view that his Lordship did. Paragraphs 6 and 7 of the supporting affidavit show that the substance of the application had earlier been raised before the Court. It is worthy of note that the Writ of Summons being sought to be brought to the notice of the learned trial Judge is in respect of a Suit now on appeal.

What transpired on the day of the ruling shows clearly that the parties were heard.
The proceedings of 9/1/2019 reads thus:
“3rd Claimant present.
5th& 6th Defendants present.
V.A. Deresima, Esq., & O.D. Nengim, Esq. for Claimants/Applicants.
V. C. Macfrido, Esq. for the 1st set of Defendants/Respondents.
No appearance for 2nd Set of Defendants.
Mr. Macfrido: The 1st set of Defendants/Respondents filed Motion on Notice on 13/11/18 seeking the Court to take judicial notice of the Writ of Summons in PHC/2748/2018 pending before Hon Justice S. O. Benson which touches on the subject matter in the instant Suit. The Motion has been served on all the parties.
Deresima: We have been served the motion. The business of the Court today is for ruling.

The motion Defendants’ Counsel is referring to has not been fixed. The only purpose of the said motion is to arrest the ruling which is frowned at. I urge the Defendants’ Counsel submission be discountenanced.”

The Motion on Notice was introduced by Mr. Macfrido, Applicants’ Counsel. Its purpose was stated in open Court.
Learned Counsel for the Claimants was heard after which the Court gave its ruling.

To mind, the facts of this case are completely distinguishable from that of MOBIL PRODUCING (ING) UNLIMITED vs. MONOKPO (supra). In the instant case the Motion on Notice was moved and parties were heard thereon.

Moving of a motion does not have to be formal. The purport of the motion stared the Court in the face. Learned Counsel for the Applicant openly stressed it.
In OYELESE & ORS vs. INEC & ORS (2011) LPELR-4819(CA), IKYEGH, J.C.A. had this to say on this point:
“The fact that learned Counsel for Applicants did not adopt the monotorious traditional method of refrain used in moving matter in the lower Courts but chose the crisp approach common in moving matter in appellate Courts did

not detract from the net result that he moved the application.”

One may ask, what injustice was caused by the attitude of the learned trial Judge to the Motion on Notice, assuming his Lordship was wrong. If the Court did not take judicial notice of the suit PHC/2748/2018, how would it have impacted the ruling? This has not been shown by the Appellants. It is not enough to identify an error in the proceedings of the lower Court, such error must be shown to have resulted in injustice. See AMADI vs. N.N.P.C. (2000) 10 NWLR (pt. 674) p. 76; DAMINA vs. STATE (1995) 8 NWLR (pt. 415) p. 53.

I resolve this point against the Appellants in the circumstance.

2. Was the order of interlocutory injunction rightly granted?

NIGERIA CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (pt. 12) 306; NWOSE VS. MBAEKWE (1973) JECSLR 136.
4. And because of (3) above the status que should be maintained pending the determination of the substantive action. See KOTOYE VS. CBN (supra); FOLLOWERS vs. FISHER (1975) 2 ALL ER 829; AMERICAN CYANAMID CO vs. ETHICON LTD (1975) AC. 396.
5. The Applicant must show that the balance of convenience is in favour of granting the application. See KOTOYE vs. CBN (supra); OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (supra); AKINLOSE vs. A.I.T. LTD (1961) WNLR 116.
6. The Applicant must show there was no delay on his part in bringing the application. See KOTOYE vs. CBN (supra).
7. The Applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect. See KOTOYE vs. CBN (supra); OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (supra).
8. The Applicant must make an undertaking to pay damages in the event of a wrongful exercise of the Courts discretion in granting the injunction. See KOTOYE vs. CBN (supra); ITAMA vs. OSARO (2000) 6 NWLR (pt. 661) 515.”

I have considered the decision of the learned trial Judge in the light of the above as well as the affidavits deposed to in connection with the application. The purpose of an order of interlocutory injunction is to preserve the RES. See ADELEKE & ORS vs. LAWAL & ORS (supra). This was what the learned trial Judge did. The averments in the affidavit show that the land in dispute is a farmland and excavation of land and erection of building thereon might change the nature of the RES irredeemably.
The ruling of the learned trial Judge and the reasons adduced therein are unassailable.

The learned trial Judge described the land in dispute as “OKPORO AVUHA” which the Appellants are not happy with. However, the identity of land is not in dispute between the parties Title to the said land has not been awarded to any of the parties.

I have no hesitation in resolving this sole issue against the Appellants. Justice should not be allowed to be truncated. The proceeding should be allowed to run its normal course. Any party aggrieved can ventilate its grievance after final Judgment.

This action was filed on 31/7/2017. The ruling being

challenged was delivered on 9/1/2019. The proceedings have been unnecessarily stalled as a result of this appeal.

This appeal lacks merit. It is accordingly dismissed with costs of N200,000.00 in favour of the Respondents but against the Appellants. I hereby order an accelerated hearing of Suit No. PHC/2146/2017 at the lower Court.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Most instructively, in the course of the pendency of the instant suit (PHC/2164/2017) before the Rivers State High Court, the Court below, the Appellants herein flied on 13/11/2018 a motion on notice dated 02/11/2011, thereby seeking the following reliefs: –
TO TAKE JUDICIAL NOTICE of the writ of summons in Suit No. PHC/2748/2018 between the Claimants, some of the 1st set of Defendants in this suit and NNPC (PHC) CT & CS LTD which touches on the reliefs and subject matter of the claimants Interlocutory application for Injunction on this suit.
And for such order(s) as this Honourable Court may deem fit to make in the circumstances.

Of the 4 issues raised by the Appellants in the brief of argument thereof filed on 20/02/2019, the Issue No. 1 is very much instructive:

–
1. Whether from the surrounding circumstances of this case, the failure of the learned trial Judge to hear and determine the Appellant’s Motion on Notice before granting the interlocutory injunction against the Appellants did not violate the Appellants’ right to fair hearing and therefore occasion a miscarriage of justice (Ground 1).

While canvassing argument on the Issue No. 1 in question, the Appellants at pages 6 – 7, paragraphs 0.03-0.05 of the brief thereof, postulated to the conclusive effect:-
However, the learned trial Judge refused to hear the motion one way or the other on the ground that the motion was intended to arrest the ruling of the Court. See the Record of proceedings as contained on page 399 of the Record of Appeal.

The Court below, at pages 399 of the Record alluded to the Appellants’ motion in question thus:
COURT: I agree with learned counsel for the Claimants that the purpose of the motion of the 1st set of Defendants on 13/11/18 after interlocutory Injunction has been adjourned for ruling is to arrest the ruling. It is not permissible in law for parties to take steps in proceedings to

arrest a ruling or judgment of a Court as the 1st set of Defendants tends to do in this suit. I therefore proceed to deliver ruling.

Not unexpectedly, the Court below proceeded immediately to deliver the vexed ruling, viz:
RULING:
The application for interlocutory injunction filed on 28/5/18 is granted. The substantive suit is adjourned to 31/1/19 for pre-trial conference, 11 am.
Signed
E. Teetitio
Judge
9/1/19.

Considering the circumstances surrounding the instant matter as a whole vis-a-vis the proceedings of the Court below, as copiously alluded to herein above, there is every cogent reason for me to hold, that by the implication of the first ruling of the Court below at page 399, the Appellants’ motion in question had indeed been considered and duly refused by the Court. Thus, it would amount to a sheer absurdity for the Appellants to persist in the misconception that the vexed motion thereof has neither been moved nor considered by the Court below. As aptly postulated by my learned brother, Awotoye, JCA, in the ruling just delivered:
“Moving a motion does not have to be formal. The purport of the motion

stared the Court in the face. Learned counsel for the Applicant openly stressed it.”
See also OYELESE VS. INEC (2011) LPELR-481(CA).

Undoubtedly, the law is well settled, that no decision of a Court of law, no matter how well articulated and conducted, can be allowed to stand, unless it passes the acid test of according the respective parties the fundamental right to fair hearing. Thus, where the decision of a Court of law or tribunal is apparently in breach of the parties’ right to fair hearing as cherishingly enshrined in the Constitution of the Federal Republic of Nigeria, 1999 as amended, that decision ought not be allowed by an appellate Court of competent jurisdiction, to see the light of the day, as it is a nullity. See UTOO VS. FEESE (2017) LPELR-44037(CA); IDAKWO VS. EJIGA (2002) 7 SC (PT.11) 168; SAMBA PET. LTD VS. IMM PLC (2020) (Pt.1) MJSC 103.

However, it is obvious from the records of appeal, that in the instant case, there is no basis whatsoever for the Appellants to persist in their day-dream that the vexed motion in question has not been determined by the Court below on 09/01/2019.

Hence, against the back drop of the

foregoing postulation, and the detailed reasoning of my learned brother Awotoye, JCA, in the said judgment with which I concur, I too hereby dismiss the appeal for grossly lacking in merits. I abide the consequential orders inherent therein.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother T. O. Awotoye, JCA, I agree entirely with the reasoning and conclusion reached therein. I too dismiss the appeal as lacking in merit and abide by all other consequential orders as contained in the lead Judgment including order as to cost.

Appearances:

C. MACFRIDO, ESQ., with him, O. O. AMADI, ESQ. For Appellant(s)

LAWRENCE S. OKO-JAJA, ESQ., with VIOLET DERESOMA, ESQ. UZOMA OMESI, ESQ. and CLIFFORD EZUGWU, ESQ. for 1st – 4th of Respondents
AKINOLA AKINYANJU, ESQ. for 5th Respondent For Respondent(s)

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