AISHA ANIMASHAUN & ORS. v. AISHAT ALIU BAKARE & ORS.
(2010)LCN/3734(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of April, 2010
CA/L/263/04
RATIO
ORDER: NATURE OF A FINAL ORDER
A final order is one which puts an end to the action by declaring that the Plaintiff is or is not entitled to the relief sought and nothing remains to be done to execute the Judgment. See Atser v. Gachi (1997) 6 N.W.L.R. (pt.510) 609 CA. PER REGINA ABIAGELI NWODA, J.C.A.
ORDER: HOW IS AN ORDER DETERMINED IF IT IS A FINAL OR INTERLOCUTORY ONE
In determining whether an order is final or interlocutory, what should be considered is what effect the order appealed against has on the right of the parties. If the order determines finally the rights of the parties, then it is a final order, if not, it is an interlocutory order. See Ndigwu v, Ibekendu (1998) 7 N.W.L.R. (pt.558) 486 CA; Nwoke v. Ebeogu (1999) 6 N.W.L.R. (pt.606) 228 CA. PER REGINA ABIAGELI NWODA, J.C.A.
WORDS AND PHRASES: MEANING OF AN IMMEDIATE ABSOLUTE ORDER
In Kotoye v. C.B.N. supra, Karibi-Whyte J.S.C. defined an immediate absolute order as follows:
“It is in my opinion on order which is final as to the thing sought to be done without the interposition of any other order”. PER REGINA ABIAGELI NWODA, J.C.A.
ORDER: TIME LIMIT OF AN INTERIM ORDER
An interim order should be granted until a named date or named event. See Odutola v. Lawal (2002) 1 N.W.L.R. (pt.749) CA 633. PER REGINA ABIAGELI NWODA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. AISHA ANIMASHAUN
2. ALHAJA KASUMU
3. MR. DUDUYEMI
(For themselves and on behalf of the
Estate of Late Sunmonu Animashaun)
4. BAM. FASHANU Appellant(s)
AND
1. AISHAT ALIU BAKARE
2. SIKIRU ALIU BAKARE
3. LATEEF BAKARE
4. SAHEED BAKARE
5. KUBURAT BAKARE
6. HAKEEM BAKARE
7. KUDIRAT BAKARE
8. MUSIBAU BAKARE Respondent(s)
REGINA ABIAGELI NWODA, J.C.A. (Delivering the Leading Judgment): The Respondents as Plaintiffs in the High Court of Lagos State commenced an action by Writ of Summons filed on 16/3/2001 against the Defendant now the Appellants seeking in the Statement of Claim five reliefs and two alternate reliefs. The Respondent also filed a Motion Ex-parte on 16th of March, 2001 seeking the following reliefs:
“1. AN ORDER OF INTERIM INJUNCTION restraining the defendants either by themselves, their agents; privies, servants, assigns or otherwise howsoever from entering, trespassing, alienating, interfering or committing other acts of trespass or in any manner whatsoever doing any act inconsistent with the property of the plaintiffs situate and lying at No. 15, Balogun Close, Bode Thomas, Surulere, Lagos where the plaintiffs reside pending the hearing and determination of the motion on notice in this suit.
2. SUCH FURTHER ORDER or other orders as this Honourable Court may deem fit to make in the circumstances”.
This motion was heard and Ruling delivered on 30th March, 2001 wherein the learned Trial Judge granting the Order of Interim injunction held:
“The Defendants/Respondents are hereby restrained either by themselves, their agents, privies, servants, assigns or otherwise howsoever, from entering, trespassing, alienating, interfering or committing other lets of trespass or in any manner whatsoever doing any act inconsistent with the property of the plaintiffs situate lying at No. 15 Balogun Close off Bode Thomas, Surulere, Lagos. The applicants shall enter into a bond in the sum of N50,000.00 as deposit for damages if this order is obtained by fraud”.
The Respondent thereafter filed a Motion on Notice on 5th of April, 2001. The 4 Appellants on the 27th of June, 2001 filed a Motion on Notice praying for an order setting aside the order of interim injunction made on the 30th of March, 2001.
The grounds of the application are as follows:
(1) That the order of interim injunction is null and void.
That the order was obtained by concealment of material facts and or misrepresentation of facts.
Arguments were taken by the learned Trial Judge and in a considered Ruling delivered on the 14th of March, 2003, the court held:
“Stating this far, and having carefully looked at the documents before the Court and having also given careful consideration of the submissions of Counsel on both sides. I hold that the discretion of that Judge cannot be substituted by mine and it therefore seems to me that the better course, in the interest of justice is to hear the motion on Notice dated 5th April, 2001. Consequently, I hereby so hold”.
Dissatisfied with the above decision of the court below, the Appellants filed a Notice of Appeal containing 3 Grounds of Appeal on 24th day of March, 2003.
The Respondent filed a Notice of Preliminary Objection on 16/5/07 challenging the competency of the Appellants appeal on 5 grounds. In line with the rules of court Briefs of Arguments were filed and served. At the hearing of the Appeal on the 28th 0f January, 2010, the learned counsel for the Appellant Mr. J.D. Oloyede adopted the Appellants Brief of Argument filed 11/7/05 settled by O.O. Aribaba. The learned counsel for the Respondent Mr. T. Akanwa adopted the Respondents’ Brief deemed filed and served on 25/2/07 informing the court that he has not argued the Notice of Objection in his Brief. The said Notice is deemed as abandoned.
The learned counsel for the Appellant Mr. O.O. Aribaba in the Appellants’ Brief distilled two Issues for determination which reads as follows:
“3.1. Whether an application for Interim Injunction can be heard and granted ex-parte without being hinged on any event or condition in time i.e, pending the hearing and determination of an existing interlocutory application on notice or a future.
3.2. Whether the failure of the lower court to set-aside the Order of Interim Injunction is a denial of the appellant’s right to a fair hearing under Section 36, Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria”.
Whilst the learned counsel for the Respondent Kolawole Abiri in the Respondents’ Brief formulated the following two issues for determination. I will adopt the two issues formulated in the Appellants Brief in the determination of the appeal as it covers the 3 Grounds of Appeal.
Under Issue One, it is the submission of learned counsel for the Appellants that the order of Interim Injunction made ex-parte by the lower court without a pending Motion on Notice to the party to be affected by the order is a procedure that runs counter to the spirit of S.36 of the Constitution of the Federal Republic of Nigeria 1999 and ought to be set aside. It is his submission that the order made by the lower court on 30th March, 2001 is an immediate absolute order which is final having not been granted upon any condition and that it enures perpetually to the detriment or in violation of the Appellants right to be heard in respect of an order against their interest. It is his further contention that, the grant of an absolute order on an ex-parte motion by the learned Trial Judge was a complete misdirection and disregard of the Supreme Court pronouncements on practice and procedure to be adopted by the court in granting an Interim Injunction. He cited Kotoye v. C.B.N. (1989) 1 N.W.L.R. (pt.98) 419 at pg.451; Nwokoro & Ors. V. Onuma & Anor. (1990) 3 N.W.L.R. (pt.136) 22 at pg.31.
Learned counsel to the Respondent, Mr. Abiri submitted that it is not compulsory in law that there must be a Motion on Notice filed with the ex-parte application for the court to have jurisdiction to grant the application rather it is the practice that an application for Interim Injunction is followed by an application for Interlocutory Injunction. It is his argument that when both applications are not filed together it will not rob the court of Jurisdiction to make an Injunctive order to preserve the res when a case has been made out for exercise of such discretion. It is his contention that the Appellants have not shown that the facts on which the learned Trial Judge exercise his discretion were false or falsified and that his discretion was not exercised judicially and judiciously. He cited 7-Up Bottling Co. Ltd. V. Abiola & Sons Ltd. (1995) 3 N.W.L.R. (PT.383) 257, Adebisi v. Odukoya (1997) 11 N.W.L.R. (pt,527) 83 part at 92, City Express Bank Ltd. V. Lagos State Govt. (2004) 7 N.W.L.R. (pt.872) 258.
It is his further contention that the court may make the interim order exparte subject to further orders as the court may make in the circumstances of the case provided no contentious issue is thereby decided. On the effect of ex-parte orders on fair hearing learned counsel cited the case of Bank Boston NA U.S.A. v. Adegoroye (2000) 2 N.W.L.R. (pt.644) 215, per Hon. Justice Ogundare J.C.A. Provisional Liquidate Tapp. Industries Ltd. V. Tapp Industries Ltd. (1995) 5 N.W.L.R. (pt. 393) 9 at pg.39 para D-E.
It is his submission that the grant of the Interim Injunction ex-parte by the trial court is within the powers of the court and that the absence of the Motion on Notice the time the order was made has not in any way denied, the Appellants fair hearing as contemplated in S.36 of the 1999 Constitution. It is the submission of learned counsel that the ex-parte application is not incompetent as it was brought under Order 42 Rule 3 of High Court Rule 3 of High Court of Lagos State (Civil Procedure) Rules, 1994. On whether the order of the lower court is absolute and final Mr. Abiri’s submission is that the interim order made was to restrain the Appellants pending the time they can be put on notice as this is reinforced by the adjournment of the case for mention and filing of the Motion on Notice for Interlocutory Injunction. He referred to African Mining Co. Ltd. v. N.I.D.B. Ltd. (2000) 2 N.W.L.R. (pt.646) 618. It is his strong contention that the interim order of the court is valid and does not violate the Appellant’s right to fair hearing. The learned counsel under Issue One raised two main questions which I will take serially. First is whether the motion ex-parte filed on 16/3/2001 pursuant to the interim order of injunction was made is incompetent for failure to file a motion on Notice simultaneously at the time the ex-parte motion was filed which is group for setting aside the order.
Second point is whether the order made by the lower court on 30th March, 2001 is an immediate absolute order which is final having not been granted upon any condition which is in violation of the Appellant’s right to be heard in respect of an order made against their interest.
The endorsement on the Motion Ex-parte on page 9 of the Record of Appeal reflects that it was filed on the 16/3/2001 whilst the Motion on Notice for interlocutory injunction on page 23 of the Record was filed on 5th April, 2001. Both applications were not filed simultaneously. The question is whether the non-filing of the Motion on Notice at the time the ex-parte application was filed and moved renders the same application defective and a reason to set aside the order emanating therefrom. The learned Trial Judge in his Ruling of 14th March, 2003 at page 98 of the Record held:
“The pertinent question is, is the grant of the order vitiated by the absence of the Motion on Notice as the time the order was granted on the 30th March, 2001? The answer in my view is no. The reason being that the grant of ex-parte order of injunction is premised mainly on the urgency and exceptional circumstance for the need to preserve …”
The learned Trial Judge went further:
“In the instant case, it does not seem to me that having not filed the Motion on Notice along with the ex-parte application amounted to a denial of fair hearing which may amount to a nullity” Order 42 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 1994 stipulates as follows:-
“Except where according to the practice existing at the time of the passing of the Law any order or rule might be made absolute ex-parte in the first instance, and except where notwithstanding rule 2, a motion or application may be made for an order to show cause only, no motion shall be made without previous notice to the parties affected thereby. But the Court if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex-parte upon such terms as to costs or otherwise and subject to such undertaking, if any, as the Court may think just; and any part affected by such order may move to set it aside”.
The above rules allows an applicant to file a motion ex-parte. Looking at the Motion Ex-parte ex- facia, there is no defect raised by the learned counsel for the Appellant therein, his contention is that the motion ex-parte is incompetent without a ‘Motion on Notice’. The reliefs in the ex-parte motion seeks an order of interim injunction pending the hearing and determination of the ‘Motion on Notice’. By virtue of extreme urgency where irreparable damage may result if the Applicant has to wait until the other part is served with the application. The rationale on the emphasis on real urgency not self induced urgency before an ex-parte order is made is founded on the reasons that the delay to be caused by proceeding in the ordinary way of putting the other side on notice would or might cause such an irretrievable damage or serious mischief. See Bank Boston NA U.S.A. v Adegoroye (2000) 2 NWLR (Pt.644) CA 215.
Therefore since the main purpose of an ex-parte application is to secure an interim order to maintain the status quo between the parties. It is not mandatory that the applicant files the motion ex-parte simultaneously with the Motion on Notice.
The Rules of the High Court did not stipulate that all ex-parte applications must be accompanied by Motion on Notice for interlocutory injunction.
The Supreme Court in Kotoye v. C.B.N. (1989) 1 N.W.L.R. (pt.98) 419 SC, Nnamemeka-Agu J.S.C. held:
“For it is settled that a person who seeks an interim order ex-parte while also applying for an interlocutory injunction files two motions, simultaneously one ex-parte asking for the interim order and the other on notice applying for an interlocutory injunction. The court before whom the applications come takes the ex-parte motion and if satisfied that it has merit ex-facia grants it making the order to the date when the Motion on Notice shall be heard. Parties and their counsel ought not to be encouraged to fife and argue a sale application ex-parte when asking for orders which can only be properly made on notice”.
And Nnamani J.S.C. of Blessed Memory stated:
“In the case of ex-parte interlocutory injunction to preserve a res, it is usual to file a Motion on Notice at the same time as the Motion Ex parte is filed. Whatever order is made stands until the Motion on Notice is taken”.
It is indisputable from the decision of the Supreme Court in Kotoye v. C.B.N. supra that the acceptable procedure to adopt in applications for ex-parte application is to file both the Motion Ex-parte pending the hearing of the Motion on Notice simultaneously with the Motion on Notice. This decision seeks to encourage applicants to file both applications simultaneously. It is imperative to note few points:
Firstly, the suggested practice is based on common sense, convenience and the nature of ex-parte applications and not on any rigid law. There is no specific provision in the Rules of Court that both motion ex-parte and interlocutory applications be filed at the same time.
Secondly, by the provision in the Rules the ex-parte application can be ordered by the court to be on notice if need be. Therefore, the issue of the two Motions being filed simultaneously cannot be a requirement of the Rule. In particular where the same Rules of Court gave the court the discretion to direct ex-parte application to be on notice. Thirdly, one of the principles that guide the court in considering whether to grant an ex-parte application is the unlikelihood of being able to serve the other party if put on Notice.
Therefore, the acceptable procedure and practice stipulated in Kotoye v. C.B.N. supra that both applications ex-parte and Motions on Notice be filed simultaneously is to avoid courts making absolute orders at the stage of ex-parte application. It is a practice encouraged and regarded as proper procedure but it depends on each fact and circumstance.
However, the non observance of filing both at same time cannot render an application ex-parte incompetent or defective when the relief sought therein specifically seeks an order pending the hearing and determination of the Motion on Notice as in the instance case. Although no Motion on Notice was filed at the time of hearing. I therefore hold that the motion ex-parte was not incompetent because the Motion on Notice was not filed at the time the ex-parte order was heard and made.
On whether the nature of the order made by the learned Trial Judge on the ex-parte application is absolute. The phrase absolute connotes finality.
A final order is one which puts an end to the action by declaring that the Plaintiff is or is not entitled to the relief sought and nothing remains to be done to execute the Judgment. See Atser v. Gachi (1997) 6 N.W.L.R. (pt.510) 609 CA.
In determining whether an order is final or interlocutory, what should be considered is what effect the order appealed against has on the right of the parties. If the order determines finally the rights of the parties, then it is a final order, if not, it is an interlocutory order. See Ndigwu v, Ibekendu (1998) 7 N.W.L.R. (pt.558) 486 CA; Nwoke v. Ebeogu (1999) 6 N.W.L.R. (pt.606) 228 CA.
In Kotoye v. C.B.N. supra, Karibi-Whyte J.S.C. defined an immediate absolute order as follows:
“It is in my opinion on order which is final as to the thing sought to be done without the interposition of any other order”.
Looking at the interim order of the court below made on 30/3/2001 supra I oppose the question: is it an interim order or absolute.
This order by its nature is not interim. An interim order should be granted until a named date or named event. See Odutola v. Lawal (2002) 1 N.W.L.R. (pt.749) CA 633. There is no doubt that the said order restrained the Appellants their agents, privies, servants from entering, trespassing alienating interfering or committing other acts of trespass or in any manner whatsoever doing any act inconsistent with the property of the Plaintiffs. This order is not to pend any further hearing on the issue of trespassing or interfering. It is an order not related to any time element before the other side could be heard in respect of that order.
Reference to page 76 of the Record of Appeal emphasizes the finality of the order as the learned Trial Judge after the Ruling adjourned the matter for mention. I agree with the submission of the learned counsel for the Appellant that the order made by the lower court on 30th March, 2001 by its nature is an absolute order.
Consequently, I find Issue One in favour of the Appellant and Ground One of the Notice of Appeal succeeds.
Under Issue 2, whether the failure of the lower court to set aside the order of interim injunction is a denial of the Appellants right to a fair hearing under S.36, Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.
Mr. O. Aribaba’s submission is that fair hearing as a rule of natural justice has been entrenched under S.36(1) of tile Constitution of the Federal Republic of Nigeria 1999, as it has been guaranteed that where a person’s legal rights or obligations are called into question, he shall be afforded full opportunity to be heard before any adverse decision is taken against him touching on such rights or obligations. It is his contention that where there is a breach of the right to fair hearing in any proceedings, such proceeding will amount to a nullity. Learned counsel noted that the order of the lower court made by Oyefesobi J. was not obliged on any future process to be filed but made in perpetuity which is in violent conflict with the principles enunciated by the Supreme Court in Kotoye v. C.B.N. supra. It is his submission that the interim order of injunction is void ab-initio which entitled the Appellants to have the same order set aside as it is not a mere irregularity.
Learned counsel for the Respondent Mr. Abiri set out the conditions under which the trial court will discharge an order of interim injunction relying on the decision of this court in the case of Odutola v. Lawal (2002) 1 N.W.L.R. (pt.749) 633 at 671. It is the learned counsel’s submission that the court below rightly refused the application to discharge the interim order in the light of the Appellants’ failure to show that the case falls within the exceptions contemplated by law and as the justice of the case demands.
The present appeal is founded on the Ruling of the court below refusing to set aside the order of the court made pursuant to the ex-parte application. The question is whether the learned Trial Judge was in order when he refused the application and directing that the Motion on Notice be heard.
It is settled law that the court that makes an ex-parte order of injunction has the inherent power or jurisdiction in an appropriate case to vary or discharge same. The discretion of the court to grant or refuse such discharge remains unfettered. See 7-Up Bottling Co. Ltd. v. Abiola & Sons Ltd. (1995) 3 N.W.L.R. (pt.383) SC 257.
In a catalogue of decided cases the Apex court and this court have set out grounds that will warrant a set aside an Order of Ex-parte injunction. In U.T.B. & 2 Others v. Dolmetsch Pharmacy (2007) 6 SC (pt. 1) I, the Supreme Court set out the following grounds:
‘(i) if the plaintiffs have not used their administrative power that might have resolved the difficulty;
(ii) if default has been made in giving security for costs;
(iii) if the affidavit had not been filed and an office copy obtained when the injunction was moved or; ,
(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’.
A party who seeks to set aside an order of injunction must show the grounds on which it hinges its reliefs. The two grounds indicated on the Motion on Notice in support of the relief to set aside the order of interim injunction are clear. First is that, the order is null and void ab initio in law. In other words, that the order was irregular granted. Second ground is that order was obtained by concealment of material facts. The appeal is anchored on the decision of the learned Trial Judge that the Order of Interim Injunction made is not a nullity.
The grounds in the motion in support fails within circumstances where the courts are minded to discharge an ex-parte order made once established. The Respondents as Applicant in the Motion Ex-parte filed 16/3/2001 sought for an interim injunction pending the hearing and determination of the Motion on Notice in the suit.
The learned Trial Judge granted an order described an interim but absolute in nature. The restraining order by the court relating to Respondents entering, trespassing or interfering with the property was made in perpetuity. It was not tied to any time frame, condition or application and the nature of the motion ex-parte does not call for the determination of contentious issue.
The attributes of an ex-parte have been categorized in a plethora of decided cases. These attributes includes the following:
1. Where there is a real urgency but not self induced.
2. The interim injunction is until a certain day usually the next motion day by which time ,the other side should have been put on notice.
3. It cannot be granted pending the determination of the substantive suit.
4. It is granted where it is necessary to preserve the res.
5. There must be a real impossibility of bringing the application for such injunction on notice and serving the other party.
6. The Applicant gives a satisfactory undertaking as to damages and not guilty of delay.
See Kotoye v. C.B.N. supra and 7-Up Bottling Co. Ltd. v. Abiola & Sons Ltd. supra.
The ex-parte interim order made by the court below was not a temporary order by its content. The effect is that the Appellants are restrained perpetually from entering the property which by that order is described as the property of the Plaintiff when the substantive claim seeks declaratory reliefs as regards on who should be in the property and an order of perpetual injunction in respect of the same property, 15 Balogun Close, Bode Thomas, Surulere, Lagos. Like earlier stated the nature of the interim order made though described as interim is perpetual and therefore an irregular order and falls within circumstances when an order obtained ex-parte will be set aside. The nature of the order made amounted to a determination of the right and ownership of the property hence the restraining order made without limitation. It was an absolute order made in the absence of the party to be bound by the order. It is the contention of the Appellant’s counsel that such order infringed the constitutional right of the Appellant to be heard first, before his right is restrained. Learned counsel raised the constitutional issue of right to fair hearing under S.36(1) of the 1999 Constitution. S.36(1) of the 1999 Constitution stipulates as follows:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure tits independence and impartiality”.
The right to fair hearing is synonymous with the Common Law Rules of Natural Justice. See Deduwa v. Okorodudu (1976) 1 N.M.L.R. 237 at 246. In civil proceedings there are certain steps to be taken which are preliminary to the hearing of the substantive case in order to preserve the subject matter of the disputes. The time available for taking those steps may be too short or there may arise an emergency situation wherein the other party may not be served as there is need to seek a quick action to arrest the situation. It is the above circumstance that is envisaged by the Rules of Court in providing for ex-parte applications. The interim orders being temporary are not to determine the civil rights and obligations of the parties in the proceedings as envisaged by the constitution. Thus the Rules of High Court under Order 41 allows the grant of ex-parte order for the preservation of the subject matter of litigation but it must be for a short period. Consequently, when an order is made that is not interim in nature, preservative and there is no real urgency, then there is non-compliance with the Rules. The provision in the Rules is the exception to the rule that parties be heard first. The nature of the order raises the issue of observance of the principle of natural justice vis-a-viz the right to fair hearing.
Therefore, the provision of the Rules of Court on ex-parte order cannot be said to affect the constitutional provision of the right to fair hearing except where the order made is not interim in nature but absolute. In such circumstance the absolute order has touched on the right of the other party without being heard. In Woluchem v. Wokoma (1974) 3 SC 153, Ibekwe J.S.C. said:
“It is well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice. In our view, therefore, it should be a rule of practice that the court will not, save in exceptional circumstances, grant interlocutory injunction on an ex-parte application. We also think it should at least be a rule of prudence”.
In the instance appeal the interim order made on ex-parte application is wider than what was sought. There is no time limit made as sought in the relief. The orders made were capable of affecting the rights of the Appellants who were not before the court and who were not heard before the order was made. The nature of the order made by ex-parte application cannot be sustained. The court cannot grant more Reliefs than has been sought.
I am cautious of the principle that the question as to whether to grant or to refuse an injunction is discretionary and unfettered. However such discretion must be seen to have been exercised in accordance with relevant rules of law and practice and to an extent within the rules of reason and justice. See Oyeyemi v. Irewole Local Government (1993) 1 N.W.L.R. (pt.270) 462 at 475. I must say the learned Trial Judge gave more orders than was asked.
Generally, the appellate court is reluctant to interfere with the exercise of judicial discretion of the trial court unless it is shown that there has been a wrongful exercise of the discretion such as where the trial court acted under misconception of law or misapprehension of fact such as giving weight to irrelevant matters or it omitted to take into account matters that are relevant or where it failed to exercise the discretion on inadequate or wrong materials. See psychiatric Hospitals Management Board v. Dr. Bab Ugochuwku Utomi (1999) 13 N.W.L.R. (pt.636) 572; University of Lagos v. Aigoro (1985) 1 N.W.L.R. (pt. 1) 143; U.B.N. Plc v. Sparkling Breweries Ltd. (1997) 5 N.W.L.R. (pt.505) 344.
The learned Trial Judge stated that the discretion of the Judge cannot be substituted by her. This position is wrong for it is trite that once any of the grounds for discharge of an order of injunction is established the Trial Judge should invoke its inherent power and discharge same. The interim order made on 30 of March 2001 was an absolute one made without hearing the Appellant. It was an irregular order and should have been set aside. The learned Trial Judge was wrong when she refused to set aside the order of interim injunction which by its nature was a nullity.
I shall not hesitate to interfere in the discretion exercised by the learned Trial Judge wherein she refused to set aside the ex-parte order and holding that it is in the interest of justice to hear the Motion on Notice when the ex-parte order by its nature is absolute.
This appeal succeeds and I hereby set aside the decision of the court below made on 14th March, 2003. In its place I grant the Appellants sale relief in the Motion on Notice of the 4th Defendant filed 27/6/2001. I set aside the Order of Interim Injunction made by the court below on the 30th of March, 2001. I award cost of N30,000.00 in favour of the Appellants against the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I have read in draft and with pleasure the comprehensive judgment just delivered by NWODO J.C.A., and I agree completely with not only her reasoning but also her conclusions. Parties to disputes must always bear in mind that discretionary powers are equitable in nature. He who comes to equity must come with clean hands and make full disclosure. A party who comes to court predicating his prayer for an equitable order on the determination of a motion on notice when infact there is no pending motion on notice has not come with clean hands and is not entitled to the prayer sought.
Ex- parte orders are intrinsically unconstitutional in nature because they are made without offering the other party a hearing. The courts have however retained and exercised the powers to make ex-parte orders in order to avoid situations where irreparable damage may be done to the res of any dispute. That is why ex- parte orders must be made most sparingly and must be made for a very limited amount of time principally to put the other party on notice of the complaint against his conduct. It must be interim in nature. In the instant case, there was no existing motion on notice at the time the order was obtained contrary to the impression created in the prayer. Also the obtained order was not interim in nature. The trial court was in error in not discharging the order. This appeal succeeds. The offending ex parte order is hereby discharged. N30,000.00 costs to the appellants.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had perused, before now, the draft of the lead judgment just delivered by my learned brother Nwodo, J.C.A. The far reaching reasoning and conclusion reached in the lead judgment are appreciably unassailable. I have the privilege and liberty to adopt them.
Hence, I have no hesitation in concurring with the said reasoning and conclusion reached therein, to the effect that the appeal is meritorious, and same is hereby allowed by me. The order of interim injunction of the court below, dated 30/3/01, is accordingly hereby set aside by me. I abide by the consequential order of costs of N30,000.00 awarded in favour of the Appellants.
Appearances
Mr. J. D. Oloyede;
O. A. Aribaba;
Mrs. Ronke KokuFor Appellant
AND
Theophilus AkanwaFor Respondent
