CHIEF EYO UMA & ORS V. ENGR. EKPENYONG OKON EFFIOM & ORS
(2013)LCN/6373(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2013
CA/C/115/2011
RATIO
POSITION OF YOU LAW ON WHEN A COURT MAY ACCELERATE THE HEARING OF ALL ISSUES IN A CASE AND TAKE THEM TOGETHER FOR JUDICIAL CONSIDERATION
Where preliminary issues cannot be determined without encroachment on to the main issues in a case, then the proper course for a court to take is to accelerate the hearing of all the issues in the case and take them together for a judicious determination. See Odutola Holdings Ltd. v Ladejobi (2006) ALL FWLR (322) 1393; Udoh v Asuquo (1986) ALL FWLR (307) 1122; Oyefeso v Omogbehin (1991) 4 NWLR (187) 596; Nyame v FRN (2010) 7 NWLR (1193) 344. PER ONYEKACHI A. OTISI, J.C.A.
WHETHER A COURT MAY DELVE INTO THE MERIT OF THE MATTER IN CONTROVERSY AT THE INTERLOCUTORY STAGE OF PROCEEDINGS
At the interlocutory stage of the proceedings, the Court should not attempt to go into the merit of the matter in controversy so as not to be tempted to determine the case of that stage; leaving nothing for the just and proper determination of the suit after the hearing. See. John Holt Nigeria Ltd & Ors v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383: Obikoya v Wema Bank (1989) 1 NSCC 113; Registered Trustees of P.C.N v. Registered Trustees of Ansar-ud-deen Society of Nigeria (2000) 5 NWLR (Pt.657) 368; Duwin Pharmaceuticals & Chemical Co. Ltd. vs Beneks Pharmaceutical & Co. Ltd vs. Zario Ind. Ltd. (supra). & Co. Ltd (supra); Orji v. Zaria Ind. Ltd. (supra). PER ONYEKACHI A. OTISI, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF EYO UMA
2. EKPENYONG EKPO ASUQUO
3. EDET EDEM EKPO – Appellant(s)
AND
1. ENGR. EKPENYONG OKON EFFIOM
2. EDEM OKON EFFIOM
3. BASSEY OKON EFFIOM
(For the children of late Effiom Okon Effiom)
4. ZENITH CONSTRUCTION CO. NIG. LTD.
5. ARAB CONTRACTORS O. A. O. NIG. LTD. – Respondent(s)
ONYEKACHI A. OTISI, J.C.A.: (Delivering The Leading Judgment): This is an appeal against the Ruling of the High Court of Cross River State sitting at Calabar, delivered on 5th April, 2011.
The 1st – 3rd Respondents, as plaintiffs, commenced suit No.HC/134/2009 by way of writ of summons. Their statement of claim and statements on oath of witnesses were filed alongside on 15/4/2001. The 1st – 3rd Respondents also filed a motion for interlocutory injunction on 17/4/2009. The 1st – 3rd Respondents in their statement of claim of page 6 of the Record of Appeal had sought the following reliefs:
14. Wherefore the Claimants claim against the Defendants jointly and severally as follows:
1. N5,000,000.00 as general damages for trespass.
2. An order of perpetual injunction restraining the defendants, their agent and privies from further trespassing, building, removing of latrite (sic), on the land subject of a lease made in favour of the Claimants’ late father, situate at Esuk Ekpo, Eyo, Akpabuyo described in plan No. RIM/12391 showing an area of 24,282 hectres and plan No. ZAP/1044.
3. A Declaration that the Claimant as children of late Chief Effiom Okon Effiom are entitled to the continue (sic) use, occupation and possession of the said land until the expiration of the subsisting lease till the year 28th day of February 2086 and are the proper persons to sublet or lease the residue of their interest as per the terms of the lease.
4. Account of monies received.
In the motion on notice filed on 17/4/2009, of page 35 of the Record of Appeal, the 1st – 3rd Respondents sought the following Orders:
(1). An Order of interlocutory injunction restraining the defendants, their agents and privies from further trespassing, removing laterite, selling or leasing, building or doing anything whatsoever on the plaintiffs land situate at Esuk Ekpo Eyo, Atimbo Akpabuyo delineated in plan No.ZAP/1044 and RIM/12391 pending the determination of this Suit..
(2). Any other order(s) as the Court may deem fit to make in the circumstances of this case.
The motion on notice was argued on 28/2/2011, and, adjourned for reply on points of law by the Appellants’ Counsel, the Appellants having failed to file a counter affidavit. The Appellants, as 3rd – 5th defendants, who later contended that they were not served with the motion, filed a counter affidavit to the motion on 14/3/2011 and accompanied same with written address, which was adopted on 14/3/2011. The matter was then adjourned for Ruling. The trial court in its Ruling delivered on 5/4/2011 stated:
“On the 28/2/2011, O. A. Bassey Esq. for the Applicants moved the motion by adopting his written argument while Eyo Asuquo Esq. for 3rd – 5th Defendants/Respondents asked for date to reply on points of law having not filed a counter affidavit as at that date and case was adjourned for that purpose to 14/3/2011.
But on the said date, U. E Eba, Esq. appearing for 3rd – 5th Respondents, told Court that his clients have filed a counter affidavit, and address that Respondents were not served the Motion but were served only a Writ of Summons. He adopted the address filed along with the counter affidavit.
However, O. A. Bassey, Esq. urged the Court to discountenance the counter affidavit as same was filed out of time. I have found in the Courts file of affidavits of service showing that 3rd – 5th Respondents were served all the originating processes including the motion on Notice and supporting affidavit on 29/4/2009 and 30/9/2009.
Therefore Respondents (sic) learned counsel (sic) contention that they were only served a writ of summons is without foundation. The question then is whether in law, Respondents can file a counter affidavit in opposition to a Motion that had been already argued in Chief on 28/2/2011. The counter affidavit was filed on 14/3/2011. The answer in my view is in the negative. See the case of BILL CONSTRUCTION LIMITED V. IMANI LTD. (2007) 3 MJSC 217 at 219 4 – 3.
What this means is that 3rd – 5th Respondents counter affidavit and the address is worthless in law and is accordingly struck out.”
The learned trial Judge then ordered as follows:
1. An Order of interlocutory injunction is hereby granted restraining the defendants, their servants, agents or privies from further trespassing, removing laterite, selling or leasing, building or doing anything whatsoever on the disputed land situate at Esuk Ekpo Eyo Atimbo, Akpabuyo, delineated in Plan No. ZAP/1044 and RIM/12391 pending the determination of this Suit.
2. The applicants are ordered to file undertaking as to damages payable to the defendants/respondents should it turn out at the end of the trial, this Order ought not to have been made.
See page 115-116 of the Record of Appeal.
Dissatisfied with this Ruling, the Appellants filed a Notice and Grounds of Appeal on 21/4/2011; seeking:
An order setting aside the decision of the High Court granting interlocutory injunction in this suit and order directing the trial court to grant accelerated hearing of the suit.
The Appellants’ Brief was filed by Ukpong Eba, Esq. on 18/7/2011. The 1st – 3rd Respondents’ Brief was filed by F.O. Riman, Esq., on 1/8/2011. These Briefs were adopted by respective Counsel on 27/5/2013. The 4th Respondent’s counsel was served with Hearing Notice on 26/3/2013. The 5th Respondent’s counsel was similarly served with Hearing Notice on 25/4/013. Neither of them filed Briefs; and they did not appear.
From two Grounds of Appeal, the Appellants distilled two Issues:-
1. Whether the grant of the Order of interlocutory injunction by the trial court in favour of the claimant in the terms set out in the Court order of 13/4/2011 did not affect the determination of the substantive suit at hearing.
2. Whether the learned trial judge was right to strike out the 3rd to 5th defendant counter-affidavit to the motion for interlocutory injunction suo motu without hearing from the parties.
The 1st – 3rd Respondents, from the Grounds of Appeal, raised two issues for determination:
1. Whether the learned trial Judge in determining the application for interlocutory injunction determined prematurely issues he would later on be called upon to try in the substantive matter.
2. Whether in the circumstances of the case and in view of the rules of court, the learned trial Judge was right in striking out the counter-affidavit of the Appellants filed out of fine and without leave of court.
The issues raised by respective Counsel for the parties are similar. I shall consider these Issues together.
On issue No 1, it is submitted for the Appellants that it is the law that a court must take all precaution not to determine a substantive matter of an interlocutory stage; relying on NNPC vs. Famfa Oil Ltd. (2009) 6 MJSC (Pt.11) 30 at 67: AG, Anambra State vs. Okafor (1992) 2 NWLR (Pt.224) 396; Orji vs. Zaria Industries Ltd. (1992) 1 NWLR (Pt.216) 124: General Electric vs. Akande (1999) 1 NWLR (Pt.588) 532. It is submitted that the Appellants, as 3rd – 5th defendants were not properly served with the processes. See Page 159 of the record of proceedings. That the processes were allegedly served on 2nd, 3rd and 4th defendant at Esuk Ekpo Eyo village, Akpabuyo; but, that there was no indication that the 5th defendant was served. That in order to do justice to the matter, the Appellants filed a counter affidavit on the 14/3/2011 to the motion for interlocutory injunction, which was adopted and argued in the proceedings on 14/3/2011. The counter affidavit had exhibits which shows that the land in dispute had been leased out to tenants before the 1st – 3rd Respondents instituted the action of the High Court. That despite the averments in the counter affidavit, the trial judge struck out the counter affidavit suo motu; and granted the 1st – 3rd Respondents on Order of injunction in terms that affect the rights of persons occupying the land in issue who are not parties to the proceedings.
It is submitted that of the stage of interlocutory application, the court should not attempt to go into the merit of the matter in controversy else it is tempted to determine the case at that stage and leave nothing for the just and proper determination of the suit after hearing: relying on the case of DP & C Ltd. vs. B P & C Ltd. (2008) 11, MJSC 187; Alpha Properties Int’l Ltd. vs. First Motors Ltd (2010) 45 WRN 152.
It is further submitted that courts are bound to do substantial justice without undue adherence to technicalities; and that the act of the trial Judge in striking out the Appellants’ counter affidavit, and proceed to deliver its Ruling on the interlocutory injunction amounted to a miscarriage of justice; relying on Adelusola vs. Akinde (2004) 8 MJSC 38; Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717: Shuaibu vs. Nigeria Arab Bank Ltd (1998) 5 NWLR (Pt.551) 582. It is submitted that on an application for injunction in aid of a claimant’s alleged right, the court would usually wish to consider whether the case is so clear and free from objections on equitable grounds that it ought to interfere to preserve the property without waiting for the right to be established.
That the Appellants in their counter affidavit had demonstrated their subsisting rights to the land in dispute and state clearly that tenants who are not parties to these proceedings had erected their residential homes on the land before the claimants, the 1st – 3rd Respondents, went to court. It is submitted that the granting of the order of interlocutory injunction by the lower court amounted to granting the substantive relief for injunction at the interlocutory stage. The Court is urged to set aside the interlocutory order and order the accelerated hearing of the substantive matter.
The 1st – 3rd Respondents concede that a trial court while considering an interlocutory application must avoid making any pronouncement that would give the impression that it had made up its mind on the substantive issues before it: but, submit that the trial court in this case did not go into the merits of the matter. The Appellants failed to file their statement of defence, two years after being served with the originating Processes; issues had not been joined. The trial court could not have determined issues that will come up in the substantive matter; relying on ACB Ltd v. Awogboro (1996) 3 NWLR (Pt. ) 387; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 273.
Learned Counsel for the 1st – 3rd Respondents referred to the record of proceedings of page 144 of the Record of Appeal where the learned trial Judge in granting the order of injunction used the word ‘dwelling’. He submitted that the word ‘dwelling’ was not part of the order sought from the court and must be a typographical error. An affidavit challenging the record of proceedings had been filed alongside the 1st – 3rd Respondents’ Brief. It is submitted that there is no residential home on the land in dispute, and no building has been commenced. It is further submitted that none of the persons named as tenants by the Appellants had come forward to be joined in the matter.
On issue No 2, the Appellants submit that the lower court suo motu raised the issue of filing a counter affidavit in opposition to a motion that has already been argued and ruled on the said issue without calling on the parties to address it thereon against the principles of natural justice. It is submitted that when a court raises an issue suo motu, the parties should be called upon to address the court thereon; relying on Ugo vs. Obiekwe (1989) 1 NWLR (PT 99) 566; Oje vs. Babalola (1991) 4 NWLR (PT 185) 267: Lawal vs. AG Kwara State (2011) 19 WRN 102. It is further submitted that Counsel for the 1st – 3rd Respondents merely informed the court that the counter affidavit was filed out of time, but that the trial Judge in his Ruling purported that the 1st – 3rd Respondents’ Counsel had urged the court to discountenance the counter affidavit, which was not so. That in this circumstance, the court ought to hove invite the parties to address it before ruling: relying on Mojekwu vs. Iwuchukwu (2004) 7 MJSC 165. It is submitted that no matter how unmeritorious a court process may be, the court has a duty to hear it before coming to any conclusion of its unmeritorious content or if it is an abuse of court process; relying on Mobil vs. Monokpo (2004) 2 MJSC 9.
It is submitted that where a process is filed out of time, the court ought to look of it to see if it discloses a defence which might be considered in the interest of justice; relying on Nishizawa vs. Jethwani (2001) 8 WRN 153. That the Lower Court was wrong to have acted without looking of the counter affidavit in order to reach a decision that is just and fair to all.
It is submitted that the striking out of the counter affidavit enabled the 1st – 3rd Respondents score a technical victory at the expense of a hearing on the merit. That the principal object of court is to decide the rights of parties and not to punish them for mistakes mode in the conduct of their cases.
On their part, the 1st – 3rd Respondents relied on the provisions of Order 21(3) and Order 32 of the Cross River State High Court (Civil Procedure) Rules, 2008, and submitted that the Appellants were served with the writ of summons and the motion for interlocutory injunction on 29/4/2009. The matter was transferred to High Court, Akpabuyo on 10/8/2010. The matter resumed of High Court, Akpabuyo on 13/12/2010, yet, the Appellants failed to file their processes in challenge of the 1st – 3rd Respondents’ suit. That on 28/2/2011, the 1st – 3rd Respondents moved the motion for interlocutory injunction through their Counsel, O. A. Bassey, Esq.; while the Appellants’ Counsel informed the Court that they had been served with the motion but needed time to file their counter affidavit. Learned Counsel to the 1st – 3rd Respondents objected on the ground that the Appellants were out of time. The Appellants’ Counsel then applied for a date to reply on points of law, which was granted. But rather than reply on points of law, the Appellants filed a counter affidavit without leave of court, and which the trial court struck out. It is submitted that the issue of the counter affidavit was not raised suo motu by the trial court, but that the 1st – 3rd Respondents had objected to it from the onset. Order 5 Rule 4 of the Rules was also relied upon to submit that the Appellants had failed to apply for extension of time; and, that the trial court rightly exercised its discretion in striking out the counter affidavit.
It is further submitted that the Appellants cannot complain of lack of fair hearing in the circumstance of this case. The cases of Mba vs. Mba (1999) 10 NWLR (Pt.623) 506; Nweke vs. Orji (1989) 5 NWLR (Pt.40) 243 were relied on. The Court is urged to dismiss this appeal.
I shall first consider Issue No 2, on the propriety of striking out the counter affidavit. Relevant Cross River State High Court (Civil Procedure) Rules, 2008, are reproduced below.
Order 5 Rule 4:
4. The Judge may, as he deems fit, either before or after the expiration of the fine appointed by these Rules or by any judgment or order of the court, extend or abridge the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorised by the Judge or under these Rules, shall pay to the court an additional fee of two hundred naira for each day of such default at the time of filing his application for extension of time.
Order 21 Rule 1(1) – (3):
(1) Whereby these Rules any application is authorised to be made to a Judge, such application shall be made by motion which shall be supported by affidavit and shall state under what Rule of court or Law the application is brought. Every motion shall be served within 5 days of filing.
(2) All such applications shall be accompanied by a written address in support of the relief sought.
(3) Where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address in opposition and may accompany it with a counter affidavit.
Order 32 Rule 4:
4. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Judge.
From these provisions, a respondent to an application is given 7 days to respond to any affidavit by filing a counter affidavit. Where he fails to do so, he can only file a counter affidavit with leave of court. The defaulting respondent brings an application for extension of time and in addition, pays to the Court an additional fee of two hundred naira for each day of such default, of the time of filing his application for extension of time.
The record of proceedings in the lower court on 28/2/2011 at page 139 – 140 of the Record of Appeal is as follows:
“Bassey – On the last adjourned Date we arrive (sic) late, and but (sic) the Defendants counsel look a Date. We also have a Motion on notice filed on 17-4-09.
Asuquo – We have been served the Motion; we need time to file counter affidavit.
Bassey – objects because the Defendants are out of time.
Argument of Motion by Bassey.
Our Motion was filed on 17-4-09. Motion is filed along with 17 paragraphs affidavit and written address. Adopts same urge (sic) the application be granted.
Asuquo – Ask for Date to reply on points of law.
Court
Adjourned for reply on points of law on 14-3-11.”
From these proceedings, Learned Counsel for the Appellants admitted they had been served with the motion for interlocutory injunction; but they had not filed their counter affidavit, and sought time to do so. Learned Counsel for the 1st – 3rd Respondents objected on the grounds that the Appellants were out of time. Learned Counsel for the Appellants did not respond to this objection. He did not at this stage ask for time to file an application for extension of time pursuant to Order 5 Rule 4. But, rather, he asked for time to reply on points of law. In other words, he accepted the position that he was out of time, and they had only to respond on points of law. The matter was then adjourned for the reply on points of law by the Appellants’ Counsel.
The record of proceedings in the lower court on 14/3/2011 is at page 140 – 141 of the Record of Appeal. On this date, it is now U. E. Eba Esq., who appears for the Appellants. The record is as follows:
“U. E Eba for the 3rd – 5th defendant (sic) unrepresented.
Says on the last adjourned date claimants’ counsel moved Motion for interlocutory injunction. We have filed our affidavit.
We were only served a writ of summons. Applied to adopt Respondents written address, and he does so. We have a 29 paragraph affidavit and 8 Exhibits attached.
Bassey Esq. – The affidavit is filed out of time i.e. by OR 36 Rule 8 thereof.
Court.
Adjourned 05-4-11 for ruling.”
From these proceedings, there is both a new Counsel for the Appellants; and, a storyline change. The Appellants, who through their former Counsel, Eyo Asuquo, Esq., had admitted being served with the motion of 17/4/2009, now denied service of the some motion. The Appellants, who asked for time to reply on points of law upon the objection of 1st – 3rd Respondents’ Counsel to their filing a counter affidavit, did not reply on points of law. Rather, they filed counter affidavit, without leave of court, contrary to the provisions of Order 32 Rule 4: and after the motion had been moved. This was without regard to the objection of the 1st – 3rd Respondents’ Counsel, which they did not bother to address.
Aside from the Affidavits of service relied upon by the lower court, Eyo Asuquo, Esq. of Counsel who appeared for the Appellants on 28/2/2011 unequivocally admitted that the Appellants were served with the motion for interlocutory injunction. The learned trial Judge rightly stated thus:
“Therefore Respondents (sic) learned counsel (sic) contention that they were only served a writ of summons is without foundation.”
Although a party is at liberty to change counsel, he does not have the liberty to also change their admissions with each change of counsel.
The record of proceedings clearly show that Learned Counsel for the 1st – 3rd Respondents had consistently on 28/2/2011 and on 14/3/2011 objected to the filing and use of a counter affidavit by the Appellants, out of time. There is no record to show that the Appellants bothered to respond to this objection. The issue of the counter affidavit was therefore certainly not raised suo motu by the trial court, as has been contended by the Appellants. The 1st – 3rd Respondents’ Counsel consistently objected to the filing and use of the counter affidavit by the Appellants, which objection made the filing of the counter affidavit in that circumstance an issue. Rather than respondent to this objection, the Appellants as it were, sought to ram or shove the counter affidavit down the throat of the 1st – 3rd Respondents; and, down the throat of the Court.
The issue was raised on the dates, 28/2/2011 and 14/3/2011, in the presence of both Eyo Asuquo, Esq., and U. E. Ebo, Esq., who appeared for the Appellants on the respective dates. Fair hearing is a hearing which is fair to all parties to the suit, by giving each one an opportunity to be heard, whether the Party be the plaintiff, the defendant, the Prosecution or the defence. A trial conducted in breach of fair hearing vitiates such proceedings, rendering same null and void. See: Idakwo v Ejiga (2002) 12 MJSC 81; Samba Petroleum Ltd v. IMB Plc. (2010) 5-7 (Pt.1) MJSC 103. The underlying aspect of fair hearing is that each party is given an opportunity to be heard.The Appellants were certainly given an opportunity to be heard in response to the objection of the 1st – 3rd Respondents to the fling and use of their counter affidavit. But, they failed to so respond to it. It is trite that where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation he fails or neglects to avail himself of that opportunity, the party cannot thereafter be heard to complain of lack of fair hearing. See: Okotcha v. Herwa Limited (2000) 15 NWLR (Pt.690) 249 at 257 – 258; A.S.R Co. Ltd v. O. O. Biosah & Co. Ltd. (1997) 11 NWLR (Pt.527) 145. On this ground, the Appellants cannot complain of lack of fair hearing.
Indeed, in the circumstance of this case, the 1st-3rd Respondents were also entitled to fair hearing. They had moved their motion, upon the admission by Learned Counsel for the Appellants that they had been served with the motion. If a counter affidavit is allowed of a later stage, when all they prepared for was a reply on points of law, the motion would have to be heard of over again. This is because the 1st – 3rd Respondents, who had already moved their motion, would be entitled to react to the averments in the counter affidavit. But, there must be an end to litigation.
The Supreme Court in Bill Construction Ltd. vs. Imani Ltd (supra) also reported (2006) 19 NWLR (Pt.1013) 1, per Onnoghen JSC unequivocally said:
“Just before learned counsel for the Appellants started moving the Court on the application or midway into his so moving the Court, learned counsel for the Respondents, if he desired to put up any facts before the court to be considered in the application on behalf of his client, was under a duty to have so informed the court and applied for an adjournment in the circumstances so as to bring the facts properly before the Court but he did not do so. He waited until learned counsel for the Appellant concluded his arguments on the application. It was when counsel for the Respondents was called upon to reply to the arguments of his learned friend that he told the Court that he needed an adjournment to file a counter affidavit in opposition to an affidavit in support of the application already argued or moved by counsel.
This obviously is not acceptable because the request for adjournment and the reason for same if granted would have amounted to a breach of the right to fair hearing of the Appellant, see N.N.B Plc v. Sanni (2001) 7 NWLR (Pt.713) 544…
On the above facts and circumstances of this case, I hold the considered view that the right to fair hearing of the Respondents was never breached by the trial court and that the Court of Appeal was in error when it held the contrary. It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilise same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. What the Court is enjoined by the provisions of Section 33 of the 1999 Constitution to do is to create a conductive atmosphere for the parties to exercise their right to fair hearing by holding the scales of justice fairly but firmly without fear or favour, affection or ill will. Having provided the required atmosphere the duty or choice of the party seeking to enforce his civil rights and obligations to utilize the opportunity so created. He cannot be compelled to do so. Where he decides to present his case in an acceptable mode and as required by the rules and substantive law, he would be heard. On the other hand, where he chooses not to present his case he cannot later be heard to complain that he was not heard as in the instant case.”The learned trial Judge rightly relied on this authority.
Therefore, the 1st – 3rd Respondents did not simply score a technical victory of the expense of fair hearing. The learned trial Judge acted within his power to exercise his discretion to grant the application for injunction in the absence of any counter affidavit. Issue No 2 is thus resolved against the Appellants.
There is no doubt that the issuance of orders of interlocutory matters is purely of the discretion of a Court, but such discretion should be exercised judicially and judiciously. For a judicial discretion to be property exercised, it must be founded upon the facts and circumstances presented to the Court from which the Court must draw a conclusion governed by law and nothing else. And, once an appellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the decision of the trial Court: except where the trial court did not act in good faith or had been swayed by irrelevant considerations or had acted arbitrarily or capriciously. See: Olumegbo v Kareem (2002) 10 MJSC 151; Duwin Pharmaceuticals & Chemical Co. Ltd. Vs. Beneks Pharmaceutical & Co. Ltd (2008) 11 MJSC 183, (2008) 1-2 S. C. 68.
Also to be considered in the exercise of judicial discretion is the principle that a court should refrain from deciding the substantive suit of the interlocutory stage, by not going into the merits of the case. This principle has been well articulated in a number of judicial authorities. At the interlocutory stage of the proceedings, the Court should not attempt to go into the merit of the matter in controversy so as not to be tempted to determine the case of that stage; leaving nothing for the just and proper determination of the suit after the hearing. See. John Holt Nigeria Ltd & Ors v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383: Obikoya v Wema Bank (1989) 1 NSCC 113; Registered Trustees of P.C.N v. Registered Trustees of Ansar-ud-deen Society of Nigeria (2000) 5 NWLR (Pt.657) 368; Duwin Pharmaceuticals & Chemical Co. Ltd. vs Beneks Pharmaceutical & Co. Ltd vs. Zario Ind. Ltd. (supra). & Co. Ltd (supra); Orji v. Zaria Ind. Ltd. (supra).In issue in these proceedings is the right to a parcel of land, which the 1st – 3rd Respondents lay claim to by virtue of a lease made in favour of their late father: and shown on plan No.RIM/12391 and Plan No ZAP/1044. A perpetual injunction is sought by the 1st – 3rd Respondents against the Appellants and other defendants therein, based on their claims over the land in dispute. An examination of the terms of order of perpetual injunction sought in the substantive matter; and, the injunctive order sought in the interlocutory application would reveal that the orders sought ore virtually the same orders; and, over the same parcel of land. The only difference being that in the substantive matter, a perpetual injunction is sought, while in the interlocutory application, it is an interlocutory injunction that is sought.
In my considered view, situations such as this call for caution on the part of the trial court. The learned trial court may not have plainly delved into the substantive issues in the Ruling, as has been contended for the 1st – 3rd Respondents. But, the consequence of the Ruling of the trial court is that the issue of rights over the parcel of land in dispute would be ceded to the 1st – 3rd Respondents pending the determination of the substantive issue, which situation may not meet the demands of justice. In my considered opinion, the right approach ought to have been to order accelerated hearing of the substantive suit.
The view of the Supreme Court in situations such as this is instructive. In John Holt Nigeria Ltd & Ors v. Holts African Workers Union of Nigeria and Cameroons (supra), the Supreme Court, per Ademola, C.J.N. said:
“There are two aspects of this matter we think it our duty to comment upon. The first is the hardship a matter of this nature may cause a business house. The first application for an interlocutory injunction was made in August, 1961: the second in September, 1961. The appeal which followed was heard over two years later, indeed in October, 1963. It should have been obvious to the trial Judge that this is a matter in which time and inconvenience would be saved by the hearing of the substantive action itself instead of the time spent on hearing arguments on an interlocutory injunction and granting order for leave to appeal. Everything ought to have been done to ovoid trying the same question on two occasions.”
See also: Duwin Pharmaceuticals & Chemical Co. Ltd. vs Beneks Pharmaceutical & Co. Ltd (supra) where the Supreme Court, per Mukhtar JSC (as he then was) said:
“The duty placed therefore on this Court in the determination of any interlocutory application pending the trial of the substantive suit is that care should be taken not to make pronouncements which may Prejudice the trial of the claim filed and still pending before the Court – See Ojukwu v. Govt of Lagos State (1986) 3 N.W.L.R. (pt.26) of page 39.
A corollary to the above is that a Court is not to try in contention in a case twice, first while considering the application for interlocutory injunction and secondly during the trial. The correct thing to do is to stop hearing the application and accelerate the trial of the substantive Suit. See The John Holt case (1963) 1 A.N.L.R page 379 as applied in Nigerian Civil Service Commission v. Essien (1985) 3 N.W.L.R. (Pt.12) page 312.”
In his concurring contribution in Duwin Pharmaceuticals & Chemical Co. Ltd. vs Beneks Pharmaceutical & Co. Ltd (supra), Mohammed JSC said:
“A successful application for interlocutory injunction simply keeps matters in status quo until completion of hearing. But a successful hearing disposes of the matter for good. The better view is, the before, that whenever it is possible to accelerate the hearing instead of wading through massive affidavits and hearing lengthy arguments on interlocutory injunction, the court should accelerate the hearing and decide finally on the rights of the parties.”,
With respect, I am of the firm view that this is the proper course to take in this matter. Accelerated hearing should have been ordered rather than the grant of the interlocutory injunction. I therefore resolve Issue No 1 in favour of the Appellants.
This appeal thus succeeds in part. The Orders sought by the Appellants are appropriate in the circumstance. Accordingly, the Order of interlocutory injunction made on 5th April, 2011 in this suit is hereby set aside. The trial court is hereby directed to give accelerated hearing to this suit.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgment written by my learned brother Onyekachi A. Otisi, JCA, I find myself in agreement on the state of the law that courts whether trial or appellate, are admonished to refrain from deciding main issues be it how slight, at the preliminary stage of dealing with preliminary issues which arise for decision in cases before them. Where preliminary issues cannot be determined without encroachment on to the main issues in a case, then the proper course for a court to take is to accelerate the hearing of all the issues in the case and take them together for a judicious determination. See Odutola Holdings Ltd. v Ladejobi (2006) ALL FWLR (322) 1393; Udoh v Asuquo (1986) ALL FWLR (307) 1122; Oyefeso v Omogbehin (1991) 4 NWLR (187) 596; Nyame v FRN (2010) 7 NWLR (1193) 344.
Rather than waste precious time and resources in the determination of a preliminary issue of an interlocutory injunction in respect of the land over which perpetual injunction was claimed as one of the principal reliefs in the case, prudence requires that the main claims in the case be decided expeditiously by the High Court, After all, while the case pends before that court, all the parties are expected to refrain from any acts/omissions in a respect of the subject matter over which their dispute was submitted to the court for resolution. The law does not allow parties in a case to interfere with the subject matter of a dispute that has been taken cognizance of by a competent court of law or act in any manner howsoever to foist a fait accompli or which would render a resolution on the dispute by the court nugatory.
Accordingly, I am in agreement with all the terms of the lead judgment which I adopt as my decision in the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I am in agreement with the reasoning and final conclusions contained in the lead judgment. I also abide by all the orders contained therein.
Appearances
Ukpong Eba, Esq.For Appellant
AND
F. O. Riman, Esq.For Respondent
