ADEMOLA ADEYEMI V. THE ESTATE OF DR. (CHIEF) VICTOR AWOSIKA (Deceased) & ANOR
(2013)LCN/6007(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2013
CA/AK/14/2010
RATIO
FAIR HEARING: THE SCOPE OF FAIR HEARING WITHIN NIGERIA
The concept of fair hearing is a universal phenomenon and is a very essential right for a person to secure justice. As a constitutional principle and imperative, it is provided under S. 36 of the 1999 Constitution of the Federal Republic of Nigeria as pointed out by learned counsel Mr. Udofot. I wish to add that in this country the basic attributes of fair hearing include that the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision or that a court must give equal treatment, opportunity and consideration to all concerned. See USANI V. DUKE (2004) 7 NWLR (Pt. 871) 116.PER ALI ABUBAKAR B. GUMEL, J.C.A.
INJUNCTION: THE POWER OF THE COURT TO ACCEPT AN APPLICATION FOR INJUNCTION IS DISCRETIONARY IN NATURE
In an application for injunction, the power of the court considering it is discretionary. The law enjoins the court to exercise such discretion judicially and judiciously. Where discretion is not so exercised any such decision is liable to being set aside on appeal.PER ALI ABUBAKAR B. GUMEL, J.C.A.
UNDERTAKING AS TO DAMAGES
According to the decision in KOTOYE (supra) an undertaking as to damages is the price which the person seeking for an interlocutory injunction has to pay and failure to order for and obtain such undertaking renders the order inchoate and without a supporting consideration.PER ALI ABUBAKAR B. GUMEL, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
ADEMOLA ADEYEMI – Appellant(s)
AND
1. THE ESTATE OF DR. (CHIEF) VICTOR AWOSIKA (Deceased)
2. CHIEF (MRS.) WINNIFRED A. AWOSIKA – Respondent(s)
ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of Kumuyi, J., of the Ondo State High Court delivered on 7th September, 2010 in Suit No. HOD/78/2010.
In a statement of claim dated and filed on 19th July, 2010, the respondents herein as the claimants, sought for the following declaratory and injunctive reliefs. They are: –
“(a) A declaration that plaintiffs are the joint owners in occupation and holder of the appropriate Certificate of Title (Deed of Sublease) in respect of the parcel of land Plots 282 and 283 Block XXIV situate and being at Ondo State Development and Property Corporation Housing Estate, Ondo along Ondo/Akure Road which title is registered as No. 23 in Volume 307 at the lands Registry in the office at Akure dated 20th July, 1989.
(b) A Declaration that the entry, occupation, exploitation and use/destruction by defendant of plaintiffs’ land plots 282 and 283 Block XXIV housing estate Ondo situate and lying along Ondo/Akure road is illegal.
(c) Damages for illegal entry, occupation, use, exploitation of the land and destruction of the fixtures thereon property of plaintiffs herein Plots 282 and 283 Block XXIV lying and situate at Ondo State Development and Property Corporation Housing Estate, Ondo.
(d) An Order setting aside as void a purported deed of sublease issued in favour of defendant purportedly by Ondo State Development and Property Corporation in respect of Plot 283 Block XXIV Ondo State Development and Property Corporation, Housing Estate Ondo along Ondo/Akure Road and registered as No.32 at Page32 in Volume 768 at the land Registry in the office at Akure dated 10th November, 2009.
(e) Perpetual Injunction restraining defendant by himself or/and his agents(s) privy (ies), assign(s)r Froxy(ies) or any person(s) taking through or by him from entering or continue to enter, occupy or continue to occupy, use or continue to use, exploit or continue to exploit, destroy or continue to destroy property of Plaintiffs Plots 282 Block XXIV situate at Ondo State Development and Property Corporation Housing Estate Ondo along Ondo/Akure Road.”
This claim was accompanied by a motion on notice also dated and filed on 19/7/2010. It was brought pursuant to O. 8 Rule 1 and Order 33 Rule 1 of the Ondo State High Court Rules 1988. It is supported by a very copious affidavit and annexures. Upon what later appeared to be a purported service of these processes on the defendant/appellant, learned counsel entered appearance and filed a motion on notice. It is dated and filed on 17th August, 2010.
This motion was brought pursuant to Order 48 rule 5 (1) & (2) of the Ondo State High Court Rules 1988, and under the inherent jurisdiction of that Court. It seeks for 2 main reliefs. They are couched in the following terms viz: –
“(a) striking out suit No: HOD/78/2010 herein for lack of jurisdiction in that the originating processes in this case had not been served or personally served on the defendant/applicant up till now.
(b) That this action (suit No: HOD/78/2010 herein) is not justiciable (the court lacked jurisdiction) during the period of annual legal vacation as there is no urgency or real urgency in the case.
The grounds for this application were set out thus: –
“1. The defendant/applicant has not been served or personally served with originating processes in this case (the writ of summons), statement of claim and other court processes up till now.
2. The plaintiffs/respondents’ case which was filed on 19/7/2010 does not disclose any urgency or real urgency to warrant being heard during the period of the annual legal vacation.
3. The 2nd plaintiff/respondent had in March 2009 and April 2010 filed similar suits against the defendant/applicant in suit No: HOD/40/2009 and suit No. HOD/49/2010 in respect of the same land (subject/matter) as in the present case.”
It is supported by an affidavit of 18 paragraphs deposed to by one Miss Sikemi Akinselure. It has 7 documentary exhibits attached to it. In their effort to oppose this application the respondents filed a counter affidavit of 10 paragraphs. To further settle issues the appellant filed a further affidavit of 13 paragraphs. On the return date for this application, 7 – 9 – 2010, the learned trial judge heard and considered arguments from respective learned counsel at the end of which he dismissed the application for lacking in merit and went further to restrain the defendant/appellant from carrying out any construction work on the land in dispute until the substantive suit is finally determined.
The defendant/appellant was dissatisfied with this decision and appealed to this court in a notice of appeal dated 15/9/2010 but filed on 16/9/2010. This notice is predicated on 4 grounds of appeal with detailed and copious particulars. In due course, learned counsel to the respective parties filed their briefs of argument.
The appellant’s brief was settled by Mr. Ekerete Udofot. It is dated 22/12/2010 but filed 11/01/2011 and deemed properly filed and served on 13/10/2011. The respondents’ brief is dated 1/11/2011 but filed on 10/11/11. Further to this, the appellant filed a reply brief. It is dated 17/11/11 and filed on 21/11/11. At the hearing of the appeal respective learned counsel adopted and relied on their respective briefs of argument. While learned counsel to the appellant urged on the court to allow the appeal and set aside the ruling of the lower delivered on 7/9/2010, learned counsel to the Respondent urged on the court to dismiss the appeal and affirm all the orders of the lower court in its ruling of 7/9/2010.
For this court to determine this appeal, learned counsel to the Appellant formulated and argued the following 3 issues. They are: –
“(1) Was the learned trial judge right to have assumed jurisdiction over the respondents’ case when it was apparent that the appellant was not served or personally served with the originating process or any of the court processes (GROUND 1).
(2) Having rightly agreed and held that I agree that there is no apparent urgency in the respondents’ motion, whether the learned trial judge sitting as a vacation judge during the period of the annual legal vacation in Ondo State had jurisdiction to have proceeded on the respondents’ case or made restraining orders in the manner prayed for by the respondents in their motion. (GROUND II).
(3) Was the learned trial judge right to have made restraining orders in the manner sought for by the respondents in their motion without hearing or taking argument from the parties in respect of the said respondents’ motion (GROUNDS III AND IV)?”
On behalf of the respondents, however, learned counsel formulated and argued the following 2 issues. They are thus: –
“(a) Whether in view of the document prepared by the bailiff of the High Court showing proof of service on appellant of the originating process in this case which appellant himself exhibited to his application at the High Court, the court was right or not in dismissing appellant complaint that he was not served with the process of court.
(b) Whether the order restraining appellant from carrying on further construction work on the land property of plaintiffs/respondents until the case before the High Court is determined was not justified in the circumstances in which it was made.”
In arguing the 1st of his 3 issues, learned counsel Mr. Udofot for the appellant, opened by referring to Order 12 rule 2 of the Ondo State High Court Rules (hereinafter simply referred to as the “High Court Rules”) and explained that it provided for originating processes of the lower court to be served personally on a defendant(s). He added that what is envisaged here is by the originating processes, subject to any of the recognized exceptions, being personally handed over to the affected defendant by an authorized official of that court. According to learned counsel the requirement of personal service of originating processes is a procedural step that is sine qua non to a proper exercise of jurisdiction in the trial of matters. He referred to and relied on the decisions in ONONYE V. CHUKWUMA (2005) All FWLR (Pt. 287) 951 at 973 D – F and ALUKO v. OGUNGBEMI (2008) All FWLR (Pt. 397) 179 at 197 D.
In his attempt to underscore and highlight the case the appellant presented to the lower court, learned counsel emphasized that by his application of 17/8/2010, the appellant contended that he was never served or personally served with any of the processes filed by the respondents. He also explained that by the averments in paragraphs 4 and 16 of the supporting affidavit to the application, the appellant had been in Abuja and not in Ondo town and remained so up till the time of filing the application of 17/8/2010. Against his paragraphs 4 and 16, learned counsel referred to paragraphs 4 and 5 of the counter affidavit of the respondents and pointed out that there is a direct admission that the originating processes were served on one Sikemi Akinselure. He also discountenanced it as inconceivable, the assertion of the respondents that the processes were received by Sikemi Akinselure on the instructions of the appellant. He referred to Exhibits DS 4 and DS 5 and maintained that there was nothing in them to support the assertions of the Respondents.
For further effect, learned counsel argued and submitted that it is not enough that the appellant got to know of the pendency of an action against him through a 3rd party. He added and emphasized that it was necessary for the appellant to have the writ of summons in which the claim against him was endorsed. While referring to the cases of OTOBAIMERE V. AKPORCHE (2004) 14 NWLR (Pt.894) 591 and ONONYE v. CHUKWUMA (Supra). Learned counsel submitted, with respect to the facts and circumstances of this case, that service of the court processes, if any, on one Sikemi Akinselure should not be taken to be personal service on the appellant. Against this submission, learned counsel urged this court to hold that the appellant was not served personally with any of the court processes and the learned trial judge was wrong to have assumed jurisdiction and take any of the steps he did. Added to this, learned counsel referred to other cases of this court and the Supreme Court and more particularly emphasized the Supreme Court decisions in ODUTOLA v. KAYODE (1994) 2 NWLR (Pt. 324) 1 and AGIP (Nig) LTD. V. AGIP PETROLLI INTERNATIONAL (2010) LRCN 119 where the pivotal place of proper service of court processes was underscored. With this as his conclusion, Mr. Udofot, of counsel urged on this court to resolve this issue in favour of the appellant.
In what appears to me to be his response to the foregoing arguments made on behalf of the appellant, learned counsel to the respondent only referred to the case of ATT. GEN. ANAMBRA STATE V. OKEKE (2002) 12 NWLR (Pt. 782) 575 at 603 and went further to admit and confirm the factual foundations encompassing the complaints of the appellant against the decision of the lower court leading to this appeal. Even the 2 cases on the list of additional authorities supplied by learned counsel to the respondents do not appear to be of any significant assistance to the determination of this appeal.
From the affidavit in support of the application and the counter affidavit of the respondents as well as the further affidavit of the Appellant there does not appear to be any profound and significant dispute as to the factual foundation of this appeal. The facts and circumstances do not pose any serious challenge. For a better appreciation of the entire scenario leading to this appeal, I wish to affidavit in support of his application are very germane to a proper determination of this appeal. They are hereby reproduced thus: –
“I, Miss. Sikemi Akinselure, female, Christian, applicant and Nigerian citizen of No. 3, Olufosoye Street, Yaba, Ondo, Ondo State of Nigeria do solemnly and sincerely make oath state as follows:
1. That I am the deponent herein and nephew to the applicant herein.
2. That I live in the applicant parents’ house at No. 3, Olufosoye Street, Yaba, Ondo, Ondo State of Nigeria. I am familiar with the facts and circumstances of this case; I have the consent and authority of the applicant to depose to this affidavit.
3. That sometime on Thursday the 12th day of August 2010 some people brought court processes (motion on notice, photocopy of writ of summons and statement of claim) to out residence at No. 3, Olufosoye Street, Yaba, Ondo, Ondo State.
4. That my uncle, Prince Ademola Adeyemi was not in as he had been in Abuja since June 2010 in respect of his business.
5. That on noticing that the document is in respect of a Court case relating to a piece or parcel of land belonging to my uncle. I got in touch with my uncle’s counsel, Ekerele Udofot Esq. I gave the counsel the said documents,
6. That I know Ekerete Udofot Esq., as my uncle’s lawyer.
The said Ekerete Udofot Esq., had earlier handled cases for my uncle in respect of the said piece or parcel of land lying, situate and being Plot 284 Block XXIV Ondo Housing Estate, Ondo, Ondo East Local Government, when the 2nd plaintiff/respondent sued my uncle in March 2009 and April 2010 in suit No. HOD/40/2009 Chief (Mrs.) Winifred Adefolahan Awosika V. Prince Ademola Adeyemi & Anor, and Suit No. HOD/49/2010 Chief (Mrs.) Winifred Adefolahan Awosika V. Prince Ademola Adeyemi & Anor. Certified true copy of writ of summons and statement of claim in suit No: HOD/49/2010 are hereby exhibited and marked exhibits ‘DS1’ & ‘DS2’ respectively.
7. That I know as a fact that my uncle, (the defendant/applicant) had never been personally served with the writ of summons in this case. The applicant had not been in Ondo State since June 2010.
12. That I know as a fact that the applicant had not been personally served with the Court processes in this case up till now. The applicant had not consented to this case being heard during the period of annual legal vacation.
15. That I know as a fact that on 12/8/2010 the bailiff of this Court did not meet the applicant at No. 3, Olufosoye Street, Yaba, Ondo, Ondo State of Nigeria. The bailiff of this Court did not serve the applicant the court processes on 12/8/2010. The said court processes referred to in paragraph 3 above were handed over to me.
16. That up till now, the applicant has not come back from Abuja. The applicant has not seen the documents given to me on 12/8/2010.”
For the respondents, the following paragraphs of their counter affidavit dated and filed on 30 – 08 – 2010 appear relevant. They are paragraph 3, 4, 5 and 6. I wish to reproduce them thus: –
“(3) That defendant/respondents place of residence within Ondo Township is No. 3 Olufosoye Street, Yaba, Ondo.
(4) That one Sikemi Akinselure, female received for applicant on applicants direction the process of Court stated in paragraph 3 of her deposition contained in the affidavit in support of the Motion on Notice filed on 17 August, 2010 by applicant. The process included an Affidavit of Urgency, Copy of Writ of Summon/Statement of Claim and an Affidavit in Suit HOD/78/2010 which were exhibited to the said Affidavit of Urgency and marked Annextures YY1, YY2.
(5) That the said Sikemi Akinselure it was who also received for applicant on applicant’s instruction the hearing notices issued by the High Court Ondo on 30th July, 2010 in respect of this case the day when this case came up for hearing at the High Court 2, Ondo which could not go on. The Hearing Notice was issued on that day and served on parties to indicate that the case has been adjourned to 30th September, 2010.
6. That on 10th August, 2010 Plaintiffs as applicants now respondent filed certain processes including an affidavit of urgency before this Honourable Court Coram Judice Hon. Justice A. Isaac Adegbenro as the Vacation Judge for the hearing of an application on notice seeking an injunction against defendant/applicant”.
From the further affidavit of the appellant dated and filed on 31 – 08 – 2010, the following paragraphs appear to be relevant. They are paragraphs 4, 5, 6 and 7 and are reproduced thus: –
“4. That the applicant resides in Lagos, Lagos State of Nigeria with his family. He is a Chattered Accountant by profession.
He practices his profession in any part of Nigeria. Since June 2010, the applicant had been in Abuja in respect of his business.
5. That the applicant’s parents live/stay at No. 3, Olufosoye Street, Yaba, Ondo, Ondo State of Nigeria. The applicant visits the parents at the said address whenever he is in Ondo Town, Ondo State.
6. That the applicant was not at No. 3, Olufosoye Street, Yaba, Ondo, Ondo State on the 12th day of August 2010. The applicant did not direct/instruct me to receive the process of court on 12/8/2010.
7. That I did not collect any Hearing Notice on 30/7/2010 on the instructions of the applicant. The applicant did not instruct me to receive any Hearing Notice on 30/7/2010. The applicant had been in Abuja since June 2010”.
Both the affidavit in support of the appellant’s motion and further affidavit were deposed to by the within named Miss. Sikemi Akinselure. In both these processes she described herself as a female, Christian, Nigerian Citizen who lives at No. 3, Olufosoye Street, Yaba, Ondo, Ondo State. Among her other particulars, was that she was a nephew (sic) of the applicant.
The underlaying complaint of the appellant in this appeal is on the manner the originating processes in Suit No. HOD/78/2010 were served on him. Service of process signifies the delivering to or leaving them with the party to whom or with whom they ought to be delivered or left; and when they are so delivered, they are then said to have been served. Service of court processes can either be personal service or service by substituted means.
With respect to the service of processes, Order 12 Rule 2 of the Ondo State High Court Rules provides in part thus: –
Order 12 Rule 2
“Save as otherwise prescribed by any of these rules an originating process shall be served personally by delivering to the person to be served a copy of the document…”
According to Black’s Law Dictionary 8th Edition at page 1180, personal service is the actual delivery of the notice or process to the person to whom it is directed.
Any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service of court process is to give notice to the defendant of the claims against him, so that he may be aware of and be able to resist, if he desires to, that which is claimed against him. Service of process on a party to a proceeding is crucial and fundamental. Failure to serve where service of process is required is a fundamental vice. It deprives the trial court of the necessary competence and jurisdiction to hear the Suit. See MOHAMMED M. KIDA V. A.D. OGUNMOLA (2006) 13 NWLR (pt. 997) 377 at 393 F – G and 394 H and SKENCONSULT V. UKEY (1980) 1 SC 6.
With respect to the instant appeal, whether the writ of summons and other processes in Suit No. HOD/78/2010 were properly served on the appellant is a question of mixed law and fact. I have set out both the facts and the law above.
From my survey and analysis of some of the decided cases on service of originating process, one fact stood out as very key and fundamental. All the decisions underscore this basic fact and; it is the need for a concerned defendant to have notice or become aware of the existence of an action against him and the nature of the claim in it. In this matter it has come to light that the writ of summons, statement of claim, motion on notice for interlocutory injunction etc, all has endorsed on them the address for service on the defendant to be No. 3, Olufosoye Street, Yaba, Ondo town. Available records before the lower court showed that those processes were served an one Sikemi Akinselure at No. 3, Olufosoye Street, Yaba, Ondo. Though the name of Sikemi is not on any of those processes, she was described as the “Dutter” of the defendant on record.
Against this background, the Respondents maintain that Sikemi Akinselure had the permission and was acting under the directive of the Defendant/Applicant to sign for and receive the processes on his behalf, all the arguments of learned counsel Mr. Udofot and some of the paragraphs of the further affidavit maintain and emphasise a directly opposite view, i.e. that Miss. Akinselure had no express or implied authority to sign for and collect those processes on behalf of the Appellant. Learned counsel had argued and maintained that the Appellant had been in Abuja at all material times when he was alleged to have been served with the originating processes and up to the time of filing the application of 17 – 1 – 10. If this were to be indeed so, where then did learned counsel get his authority to take all the steps he took with respect to this matter. I think I have an idea. A community reading of paragraphs 4, 5, 6, 8 and 9, clearly shows that Miss Akinselure knew so much about how the Appellant does his business and also knew a lot about the issues and dispute giving rise to the action on Suit No. HOD/78/2010. I do not believe that all the actions and steps she took when receiving the court processes and going to meet with her uncle’s lawyer were just out of the blues. In this regard, I am more inclined to believe learned counsel to the Respondent that Miss Sikemi the “Dutter” (sic) of the appellant was directly acting under his instructions to receive the court processes and to take same to his lawyer for further actions. I also believe that learned counsel Mr. Udofot did not just act as a mere busy body when he took all the steps he did but only after a full discussion with and the instructions of the Appellant.
It is a cardinal principle of adjudication that every case must be decided on its peculiar facts and circumstances. The facts and circumstances in the instant appeal are in a class of their own. I am of the view that learned counsel Mr. Udofot had never been acting in a fire brigade manner or was panic stricken when he filed the application of 17 – 8 – 2010. Miss. Akinselure was served on 12/8/2010. According to her deposition in paragraph 5, on noticing that the court processes were in respect of a case relating to a parcel of land belonging to her uncle she got in touch with Mr. Udofot and gave them to him. It was subsequent to this that learned counsel approached the court with his application of 17/8/2010 and from ground 3 in support of this application it is very clear that wherever the Appellant was, he was in touch with whatever was going on at his home town, Ondo, because of his alleged construction activities on the land in dispute and the pendency of Suit No. HOD/40/2009 and HOD/49/2010. I am therefore of the firm view that, having regards to the peculiar facts and circumstances of this matter, the appellant authorized his niece Miss. Akinselure to accept court processes meant to be served on him and further instructed same to be forwarded to his lawyer Mr. Udofot for further action. Added to that also, I am of the view that the Appellant did not suffer any prejudice or miscarriage of justice, as at the current state of this matter, as far as the issue of the need for personal service of originating processes is concerned.
Against this background and after a full overview of the entire facts and circumstances, I am unable to see any substance in all the submissions and arguments of learned counsel Mr. Udofot on his issue number one. All are no more than an attempt to create a mountain out of a mole hill. This issue is hereby resolved against the Appellant.
The 3rd issue formulated and argued in the appellants brief of argument is proximate to the 2nd issue formulated and argued on behalf of the Respondents. Because of this coincidence, I would like for the time being proceed to consider the 3rd issue formulated on behalf of the Appellant before I later come back to the 2nd issue of the appellant.
In opening his arguments, learned counsel put it under focus that the Respondents by their motion prayed the lower court for an order for interlocutory injunction against the Appellant pending final the determination of the suit. With this background under focus, learned counsel explained that interlocutory injunctions or restraining orders pending the determination of a substantive suit are not granted as a matter of course but after an application for such reliefs had satisfied certain laid down criteria.
In his effort to capture those laid down criteria, learned counsel referred to the case of KOTOYE V. CBN (2001) FWLR (R.49) 1567, particularly at pages 1596 to 1597 where the Supreme Court restated 4 principles for the grant of an interlocutory injunction pending the determination of a substantive suit. He isolated and emphasized them for the purpose of his arguments and submissions on this issue. These 4 principles identified by Mr. Udofot are: –
“(a) The strength of the applicant’s case, i.e. an applicant must show a real possibility not probability of success;
(b) That the balance of convenience is on the side of the applicant;
(c) The applicant must show that damages cannot be adequate if at the end he was able to show that he suffered some injury; and
(d) The conduct of the parties, etc.”
Relating these principles to the facts and circumstances of this matter, learned counsel pointed that the lower court granted an order restraining the appellant from further construction activities on the land in dispute without any hearing inter parties.
He referred to page 73 of the record of appeal and captured the essence of the proceedings and what transpired before the learned trial judge on 7/9/2010. He added further that neither the appellant’s counsel nor counsel to the respondents argued or made any submission relating to the respondents’ application for interlocutory injunction because that motion was not for hearing on that date. He explained that what was before the court for hearing was the appellant’s application of 17/8/2010 challenging the jurisdiction of the lower Court to proceed with the matter on the ground of defective service or non-service of originating processes on the appellant.
While referring to the Supreme Court decisions in KOTOYE V. CBN (supra) at 1604, ADIGUN V. ATT. GEN. OYO STATE (1987) 1 NWLR (Pt. 53) 678 and DEDUWA v. OKORODUDU (1976) 10 SC 329, learned counsel made wide ranging and profound submissions on the constitutional and natural justice principles of fair hearing. With that as his foundation, he submitted that the restraining order granted suo motu by the lower court was contrary to the principle of fair hearing as provided under S. 36 of the 1999 constitution. He typified the exercise of discretion by the learned trial judge as whimsical, capricious and arbitrary when the law requires that such exercise of discretion must be judicial and judicious. He urged this Court to set aside that wrongful exercise of discretion and resolve this issue in favour of the Appellant.
In his response, learned counsel Mr. Fakunle SAN, for the Respondents merely referred to the cases of OJUKWU V. GOV. OF LAGOS STATE (1986) NWLR (Pt. 10) 806 AND KOTOYE V. CBN (supra) which according to him decided that an injunction may issue to put matters in status quo where circumstances demand, where parties have not argued their applications. He added further that the restraining order made by the learned trial judge accords with common sense and justice. He urged this court to so hold and resolve this issue against the Appellant.
At paragraph 1.07 of his reply brief, learned counsel seized the opportunity to put the record straight when he drew the attention of the Court to an erroneous and misleading suggestion of learned counsel Mr. Fakunle SAN, that the Appellant had filed a counter affidavit to the respondents’ motion, for interlocutory injunction. He urged this court to find as a fact that learned counsel Mr. Fakunle SAN was laboring under a total misconception in his suggestions that a counter affidavit was filed. He further urged the court to disregard any such erroneous suggestion.
I would like to, without any hesitation, agree with all the submissions of learned counsel Mr. Udofot that Mr. Fakunle SAN was absolutely wrong to suggest that a counter affidavit was filed by the Defendant/Appellant against his motion on notice for interlocutory injunction contained at pages 33 to 45 of the record of appeal. The record of appeal does not contain any counter affidavit as suggested at paragraph 3.7 of the Respondents’ brief of argument. The only counter affidavit at pages 61 to 63 was the one filed on behalf of the Respondents against the Appellants’ motion of 17 – 8 – 2010, and it categorically said so in its heading.
In deciding as he did, the learned trial judge said at pages 73 to 74 of the record thus: –
“COURT: I have listened to the submission of counsel both side and after going through the affidavit in support and Counter Affidavit I am satisfied that the first leg of this application lacks merit and it is accordingly dismissed. The second leg is at my direction and though I agree that there is no apparent urgency in the motion, the justice of the case demands that the ‘res’ of the substantive suit is not destroyed during the pendency of the case. I have in the light of that given the counsel to the Applicant the option of giving an undertaking that his client will stop construction work on the disputed land until this case is disposed of. From what he has said appears he can not guarantee that his client will abide by the clear intention of the Court which is that the statut quo (sic) be maintained. It is important that the Court administer justice to all manner of people without fear or favour just as it is also important that the Court in doing so guards its decision and protect the sacredness of its orders thereby leaving no room for ambiguity and or uncertainty.
Consequently, I hereby ordered that the Defendant is hereby restrained from carrying out any construction work on the disputed land until the substantive suit is finally determined. I make no order as to costs. Case is adjourned to 30/9/2010 for hearing at Ondo.”
I have tried to put the above decision of the learned trial judge under perspective and in terms of the facts and circumstances of this matter, and I find myself at a loss as to how and why it went to the extent it did. Let it be borne in mind that the adjournment for hearing to 30/9/2010, remained non sequitur because if it was hearing of the motion on notice for interlocutory injunction there would not have been any need for that because an order had already been made in identical terms to what was being sought therein. If the hearing at Ondo on 30/9/2010 was with respect to the substantive action, pleadings had not in law or in fact been concluded to justify making an order for hearing,
The case of KOTOYE V. CBN has laid down enough principles to assist the courts to exercise discretion properly in matters involving the grant or refusal of injunctive reliefs. In a long line of decided cases, the courts have continued to emphasise that the reason for the grant of an order of injunction is to enable matters to be kept in status quo pending when the court will determine the issues at stake in the substantive action. Such an order will ensure that, if at the end of the day the court finds that the applicant is entitled to an order of perpetual injunction, his legal right would not have been so invaded that pecuniary damages would not adequately compensate him and there can be no return to the status quo. See OBEYA V. A. G. FEDERATION & ANOR (1987) 2 NSCC 951 and ATT. GEN. ABIA STATE V. ATT. GEN. FED. (2006) 16 NWLR (pt.1005) 265 and AKAPO v. HAKEEM HABEEB (1992) 6 NWLR (Pt.247) 266.
In the instant appeal, the Appellant has complained of denial of fair hearing. The concept of fair hearing is a universal phenomenon and is a very essential right for a person to secure justice. As a constitutional principle and imperative, it is provided under S. 36 of the 1999 Constitution of the Federal Republic of Nigeria as pointed out by learned counsel Mr. Udofot. I wish to add that in this country the basic attributes of fair hearing include that the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision or that a court must give equal treatment, opportunity and consideration to all concerned. See USANI V. DUKE (2004) 7 NWLR (Pt. 871) 116.
In an application for injunction, the power of the court considering it is discretionary. The law enjoins the court to exercise such discretion judicially and judiciously. Where discretion is not so exercised any such decision is liable to being set aside on appeal.
According to the decision in KOTOYE (supra) an undertaking as to damages is the price which the person seeking for an interlocutory injunction has to pay and failure to order for and obtain such undertaking renders the order inchoate and without a supporting consideration. I have carefully considered the entire circumstances leading to the granting of the order restraining the appellant from carrying on with further construction activities on the land in dispute and the order itself in the context it was made and I am of the humble view that the learned trial judge did not do so after a proper consideration of the law in the form of all the relevant guiding principles enunciated and enforced by the courts and all the relevant and material facts. In view of this, I fully agree with learned counsel Mr. Udofot that the lower court in granting the restraining order as it did failed to observe and accord the Appellant his constitutionally guaranteed right to fair hearing. Also, because of failure to consider all the relevant guiding principles and all the material facts, the court did not exercise its discretion judicially and judiciously. Upon the foregoing this issue is hereby resolved in favour of the Appellant. Having resolved issue 3 of the Appellants issues for the determination of this appeal, it appears that the latter part of issue 2 must be subsumed into issue 3. It would therefore not be necessary to go into its details.
This appeal is allowed in part. The service of the originating processes in this matter is hereby deemed to have been properly been made thereby clothing the lower court with the necessary jurisdiction and competence to entertain Suit No. HOD/78/2010. However, the restraining order made on 7/9/10 before the hearing and determination of the already filed and served motion on notice for interlocutory injunction is hereby set aside and discharged.
In consequence of allowing this appeal in part, Suit No. HOD/78/2010 shall be reassigned to another judge of the Ondo State High Court for hearing and determination on the merits. The Honourable Chief Judge is hereby accordingly so ordered. I make no order for costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, A. A. B. Gumel, JCA just delivered. I agree with the reasoning and conclusion therein.
My brief comments are in respect of the appellant’s issue No. 3. From the record of proceedings for 7/9/2010 the business of the day was the hearing of the defendant/applicant’s (appellant herein) motion on notice dated 17/8/2010 and filed the same day for the striking out of the suit for want of jurisdiction on the grounds of failure to serve the originating processes on him personally and non-justifiability of the suit during the period of the court’s annual vacation for lack of urgency.
The processes before the court as at 7/9/2010 were
1) The Writ of Summons and Statement of Claim filed on 19/7/2010.
2) Motion on Notice dated and filed on 19/7/2010 on behalf of the plaintiffs/applicants (respondents herein) for an order of interlocutory injunction restraining the appellant from entering the land in dispute and/or erecting any structures thereon, with supporting affidavit and exhibits.
3) Affidavit of Urgency in support of the motion for interlocutory injunction filed on 10/8/2010.
4) Motion on Notice dated 17/8/2010 for the striking out of the suit.
5) Counter Affidavit to the motion of 17/8/2010 filed on 30/8/2010.
6) Further Affidavit in respect of the motion on notice dated 17/9/2010 and filed on 31/8/2010.
What is evident from the processes listed above is that pleadings had not been concluded in respect of the main suit and the appellant was yet to react to the application for interlocutory injunction.
The ruling of the learned trial Judge has been set out in extensu in the lead judgment. I need not reproduce it here. Suffice it to say that in an attempt to preserve the res in the matter before him the learned trial Judge, with the greatest respect, went too far.
The grant or refusal of an application for interlocutory injunction is discretionary. In the exercise of its discretionary powers the court must act not only judicially but also judiciously.
In the instant case as at 7/9/2010 the parties had not had the opportunity of addressing the court on the propriety or otherwise of the grant of an order for interlocutory injunction pending the determination of the substantive suit.
It is settled law that the court before which a matter is pending has a duty to preserve the res in order to ensure that any decision reached at the conclusion of the suit is not rendered nugatory or to avoid being faced with a fait accompli. Many factors must be taken into account before making such an order. They are elaborately set out in the well known cases of Kotoye v. CBN (1989) 1 NWLR (98) 419; and Obeya Memorial Hospital vs. A. G. Federation (1987) 3 NWLR (60) 325 among others.
On 7/9/2010, since the appellant was yet to file a Counter Affidavit to the application for interlocutory injunction it could not be said that the necessary materials for the judicial and judicious exercise of the court’s discretion were before the court.
The best that the court could have done at that stage was to order the parties to maintain the status quo ante bellum pending the hearing and determination of the application for interlocutory injunction or to order an accelerated hearing of the substantive suit.
It has been reiterated in numerous authorities that a court of law must always be wary of making an order at the interlocutory stage that is tantamount to determining the issue in contention in the substantive suit. See: Onyesoh vs. Nnebedun (1992) 3 SCNJ 129; Bakare vs. Bakare (2012) 16 NWLR 29 @ 49 – 50 H – D; Nigerian Civil Service Union vs. Essien (1985) 3 NWLR (12) 306 @ 316.
I agree with my learned brother in the lead judgment that the learned trial Judge erred in granting an order of interlocutory injunction against the appellant pending the hearing and determination of the substantive suit without affording the parties a hearing on the issue and when the application in respect thereof was not listed for hearing that day.
I agree that the appellant’s right to fair hearing was breached in the circumstances. I therefore agree that the appeal should be allowed in part. I abide by the consequential order made in the lead judgment. I make no order for costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Ali Abubakar B. Gumel, JCA just delivered now. I agree entirely with all the reasoning and conclusions of His Lordship and I adopt them as mine.
I abide by all the consequential orders of His Lordship as well as the order regarding cost.
Appearances
Mr. Ekerete Udofot For Appellant
AND
Mr. O. O. Fakunle SAN with Mr. A. Saliu For Respondent
