CHIEF BENSON AJONUMA & ORS v. SEBASTINE NWOSU & ORS (2014)

CHIEF BENSON AJONUMA & ORS v. SEBASTINE NWOSU & ORS

(2014)LCN/7475(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of October, 2014

CA/PH/64/2009

RATIO

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO CONDUCT ITS PROCEDURE IN THE LIGHT OF ITS RULES AND LAWS AND THE DUTY TO EXERCISE ITS DISCRETION JUDICIAL AND JUDICIOUSLY

I think this is one appeal that throws up the need to emphasize that every judge should act the master of his own Court, and should not allow any counsel/person (no matter how high), to teleguide and dictate to the Court how to conduct its proceeding/procedure, in the light of its rules and laws. See the case of MFA & ORS VS INONGHA (2014) LPELR – 22010(SC) where my Lord Ngwuta JSC said:
“The Court has a duty to guard against an attempt by any of the parties to make an ass of the law and its rules of procedure.”
See also the case of GTB PLC V FADCO IND. LTD (2013) LPELR 21411(CA) where we held as follows:
“A Court must always possess judicial discretion which it has to exercise when the interest of Justice so demands and a judicial discretion ought to be founded upon the facts and circumstances presented before the Court… A party who fails to utilize opportunity of prosecuting his case cannot turn round to blame the Court for not being given fair hearing. FHA V Kalejaiye (2011) All FWLR (pt.562) 1633.
In the case of Esene Ors Vs The Speaker of Edo State House of Assembly and Ors (2012) LPELR – 19775 (CA), My Lord, Tom Yakubu JCA, stated the role of and what his expected of a Judge in the handling of his Court, as follows:
“… and much more a good judge is one who finds the Law and applies it to the facts and circumstances of the case being agitated by parties in the matter before him for adjudication. Indeed, the judge is expected to be the repository of the law and so he must be well ahead of learned counsel, in knowledge and understanding of the law. Learned Counsel, appearing in a cause or matter before the judge as adjudicator, are only officers of the Court, to assist the Judge and no more. Therefore, the buck stops not at the Bar but on the Bench, with the drop of the gavel – hammer, by the Judge.” After a Court had exercised its discretion in a matter, one way or the other, relating to the application of law or procedure, where a party complains about the exercise of the discretion by the court, in the application of the Law, or conduct of a case, the duty remains that of the party, trying to fault the exercise of the discretion, to show that it was exercised improperly. See GTB PLC Vs Fadco Industries Ltd. (supra); Amoshima Vs State (2011)14 NWLR (pt. 1268)530. per. ITA GEORGE MBABA, J.C.A.

COURT: THE DUTY OF THE COURT; WHETHER IT IS THE DUTY OF THE COURT TO CALL ON PARTIES TO ADDRESS IT ON HOW TO APPLY THE LAW OR EQUITY TO RESOLVE ISSUES AFTER PARTIES HAVE MADE THEIR SUBMISSIONS BEFORE THE COURT ON A GIVEN ISSUE

COURT: THE ABUSE OF THE COURT PROCESS; WHETHER IT IS AN ABUSE OF THE COURT PROCESS FOR A PARTY TO USE INTERLOCUTORY APPEALS TO FRUSTRATE THE TRIAL OF SUBSTANTIVE CASE

I also think that the Appellants were not keen to prosecute their main case at the trial Court, and so used this appeal to stall the trial. That is an abuse of the process, especially as Appellants were not appealing against the merits of the Ruling of the learned trial Court. I refer the Appellants’ to the position of this Court in the case of Salihu & Ors Vs RTEAN & Ors (2013) LPELR 21820 (CA), where we said:
“… Such actions that seek to frustrate the trial of substantive case at the lower Court, by use of interlocutory appeals, is an affront to the principles of sound adjudication and it borders on abuse of the Court process. See also Nwana Vs UBN Plc (2013) LPELR-21823 (CA) per. ITA GEORGE MBABA, J.C.A.

COURT: ADJOURNMENT BY THE COURT; WHETHER THE COURT SHOULD ADJOURN A CASE WHERE THE THE PARTY ASKING FOR ADJOURNMENT IS ONLY OUT TO UNDERMINE THE AUTHORITY AND INTEGRITY OF THE TRIAL COURT

In the case of GTB Plc Vs Fadco Industries Ltd (2013) LPELR 21411 (CA), where defence counsel tried to force the court to adjourn a matter at his own terms and refused to call evidence even when the case was fixed at his instance that date for defence, this court held:
“I think the Appellant’s Counsel was only out to undermine the authority and integrity of the trial court with that affront and the Court would have greatly ridiculed itself and its earlier position… if it had yielded to Appellants’ antic, to adjourn the case on their terms…” per. ITA GEORGE MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF BENSON AJONUMA
2. CHIEF SYLVANUS UDENKWO
3. MR. GODFREY ONONUJU
4. DEACON STEPHEN EZIRIM
5. HUMPHREY AJONUMA
(For themselves and on behalf of members of Ofeiyi Village, Umudi in Nkwere Local Government Area) Appellant(s)

AND

1. SEBASTINE NWOSU
2. BENJAMIN ANOKWURU
3. CHARLES ADIKE
4. STEPHEN NWORGU
5. GABRIEL UCHEAGWU
6. STEPHEN NWAKAMMA (For themselves and on behalf of Members of Umuezeala Village, Umudi and Umuduruimo Village, Umudi in Nkwere Local Government Area)
7. FRANCIS EBONINE
8. EDWIN NWOSU Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against interlocutory Ruling of the High Court of Imo State in suit No. HON/8/2008, delivered on 10/11/08 by Hon. Justice T.N. Nzeukwu, wherein his lordship dismissed a motion for interlocutory injunction, filed by the plaintiff (Appellant herein) on 13/3/2008.

Appellants’ contention in this appeal is that they never moved or argued the said motion for interlocutory injunction, which the trial Court ruled on, and dismissed. They argued that the motion for injunction as well as a motion for extension of time to file Plaintiffs’ pleadings and plan, were pending at the lower Court, at the time the Defendants (Respondents herein) filed their statement of defence and plan in the case.

There was argument as to whether the statement of defence and plan filed by the Respondents were proper, since the Appellants were yet to file their statement of claim and plan. It was that argument, hotly, taken by Counsel on both sides on 22/9/08, that the Court reserved for ruling, which it delivered on 10/11/2008, holding that the statement of defence was wrongly filed; but that the Court rather headed the Ruling as one on the Motion for Interlocutory Injunction, and thereupon dismissed the plaintiffs’ motion for interlocutory injunction, which they said was still pending and never moved.

That is the real substance of this appeal, filed on 11/11/2008 (a day after the Ruling) to challenge the dismissal of the motion for interlocutory injunction. See pages 88 to 90, of the Records of Appeal, where Appellants raised a lone ground of appeal; that the learned trial Judge erred in law by delivering a Ruling on the motion for Interlocutory Injunction, without the same being moved. They also filed a brief of arguments thereto on 6/2/2009, which was amended, with the leave of this Court, granted on 2/7/12. In the Brief, filed on 3/7/12, Appellants’ issue for determination was/is:

Was the lower Court right by dismissing the motion for interlocutory injunction which was not moved by the Plaintiffs/Appellants’ Counsel, who was not heard in oral argument and without adopting his written submission?

The Respondents filed their amended brief of argument on 12/7/12 and argued the appeal on the issue, whether the learned trial Court was right in dismissing the Appellants’ application for interlocutory injunction.

In their background facts, the Respondents said that the Appellants made it quite manifest at the Court below that they were primarily interested in obtaining an interlocutory judgment against them (Respondents) and so when the Appellants filed their writ of summons on 13/3/08, they also filed a motion for interlocutory injunction, instead of their statement of claim, and the motion for interlocutory injunction was supported by two written addresses; that they (Respondents) filed counter-affidavit and address to oppose the application for the injunction; that in the Counter affidavit, they pointed out that the identity of the land in dispute had not been disclosed, especially as the Appellants had not filed their statement of Claim; he said that the Appellants, thereafter, filed their statement of claim out of time, on 14/5/2008 and a motion for extension of time to regularize their said statement of claim; that the Appellants proceeded to file two additional affidavits in support of their motion for Interlocutory Injunction; that they (Respondents) too filed two counter affidavits against the said motion and also filed their statement of defence on 18/9/08, adopting that approach to get all their papers, in so that the Court could deal with all the interlocutory matters on the adjourned date of 22/9/08.

Arguing the appeal, on 24/9/14, Counsel for the Appellants’, Nnamdi Ibegbu, SAN, who settled the brief, (with him Obiora Nweze Esq), submitted that the situation here is indeed lack of hearing at all, or want of fair hearing, which touches on jurisdiction. He relied on the case of Wappah Vs Mourah (2006) 18 NWLR (pt.1010) 18 at 44; Lawal Vs Quadri (2004) 6 NWLR (pt. 868) 1 at 14; Otapo and Ors Vs Summ Onu & Ors (1987) 2 NWLR (pt. 58) 587 at 605; Newswatch Communications Ltd Vs Atta (2006) 17 NWLR (pt. 993) 144, though he argued that the last case is different from the principles which concern this appeal.

Counsel argued that considering an application for interlocutory injunction in another motion, without giving both Counsel opportunity to realize that the motion for injunction was being heard, was unfair, and had denied the parties fair hearing; that both parties were denied fair hearing; that the Appellants’ Counsel, in particular, would have sought opportunity to stress some points and cite authorities, if he knew the Court would consider the motion for interlocutory injunction.
He urged us to allow the appeal.

Counsel for the Respondents said the parties were accorded fair hearing; that on 22/9/08 the Appellants refused to move their motion for extension of time to file their statement of claim and plan, and rather insisted that the statement of defence and plan filed by the Respondents be struck out, for being filed when the Appellants’ pleadings had not been filed! Counsel for the Respondents said that the proceedings of 22/9/08,

“were therefore protracted unnecessarily in the bid of the Appellants to obtain a hearing on their motion for interlocutory injunction and prevent the Respondent from opposing that application on the basis of their own statement of defence and plan. In the Course of the dingdong, the motion for interlocutory injunction was virtually argued by both Counsel by multiple references made to the filed papers. The learned trial Judge who had enormous patience with Counsel and who apparently had cause in the Course of the proceedings to peruse the papers filed by the parties ” then ended the proceedings” and adjourned the case for ruling on 10/11/08. (See page 3, paragraph 2.06 of the Amended Respondent’s Brief)

Counsel said that the Ruling of the Court was comprehensive on all the issues argued and referred to in the motions by both side; that even though the ruling, inadvertently, came under the heading “Ruling on Motion for Interlocutory Injunction”, the trial Court had also set aside the statement of defence and plan filed by the Respondents and proceeded to consider the motion for extension of time to file statement of claim, and granted it, and the motion for interlocutory injunction, and dismissed it; that the trial Court was right, by so doing, having considered the written submissions filed for the said motion, though the said application was not formally (orally) argued; that the mistake or error of the trial Court did not affect the merits and validity of the decision. He relied on the case of Osafile Vs Odi (No.1) (1990) 3 NWLR (pt.137) 130.

Counsel also relied on the case of Newswatch Communications Ltd Vs Atta (2006) 12 NWLR (pt. 993) 144 at 170, where the Supreme Court held:

“There still remains a point and it is the refusal of the learned trial Judge to hear counsel move the motion. Can that vitiate or nullify the decision of the learned trial Judge? I think not. Although the learned trial Jusge did not formally hear the Counsel on the motion, he really considered it in the judgment and came to a conclusion that I cannot fault. In any view, there is no miscarriage of Justice by not formally hearing the Counsel in the peculiar circumstances of this case, and the peculiar circumstances is that the learned trial Judge thoroughly considered the motion and gave a brilliant judgment, which I cannot fault.”

Counsel further argued that the Appellants never appealed against the cardinal issues on which the trial Court based its refusal of the interlocutory injunction, having duly considered the application in the Ruling, as was the case in the Newswatch Communications Ltd Vs Atta’s case (supra).

Counsel further submitted that Appellants were playing double standard by complaining against the dismissal of the Motion for interlocutory injunction only and not against the grant of their motion for extension of time to file their statement of claim and plan, which was also considered and determined by the trial Court on the said 10/11/08, whereas their Counsel did not, formally, move that application. Thus, Counsel said, Appellants were approbating and reprobating, which the law abhors. Ude V Nwara (1993) 2 NWLR (pt.278).
He urged us to dismiss the appeal.

RESOLUTION OF THE ISSUE

Appellants’ writ of summons, filed on 13/3/08, had prayed for:

(a) A declaration that the Plaintiffs are entitled in the right of occupancy over the land situate and being at Ofeiyi Village, Umudi in Nkwere Local Government Area, known as Okpuno Ofeiyi Land, otherwise known as Ala Okpuhu, which stretches from Onu Nwankwo to Onugbugo, which forms the boundary between Ofeiyi and Dikenafai, situate within jurisdiction.

(b) N10,000,000 (Ten Million Naira) general damages for trespass against the 1st to 6th and 8th Defendants.

(c) An order of injunction restraining the 7th Defendant from alienating in any manner whatsoever the land in dispute or any part thereto either alone or in conjunction with any one whatsoever inclusive of the 1st to 7th Defendants without the written consent of the plaintiffs.

(d) An order of perpetual injunction restraining the 1st to 6th Defendants and the 8th Defendant their servants, agents, privies and otherwise from trespassing on the land in dispute.” (See page 3 of the Records)

Appellants had also filed the Motion for Interlocutory Injunction on the same date, 13/3/08, seeking:

(1) An order of Interlocutory Injunction restraining the Defendants/Respondents particularly the 8th Defendant, their servants, agents, privies and otherwise from erecting a structure on any part of the Land in dispute, known as Okpulo Ofeiyi Land otherwise known as “Ala Okpuhu” which stretches from Onu Nwankwo to Onugbugo which forms the boundary between Ofeiyi and Dikenafai, from depositing building materials and from continuing with construction of structure(s) on the Land in dispute, pending the determination of this suit. An order approving the authorisation of the Plaintiffs to prosecute this suit in a representative capacity for themselves and on behalf of members of Ofeiyi Village, Umudi in Nkwere Local Government Area.” (See page 5 and 6 of the Records)

On 22/9/2008, when the suit came up, both the motions for interlocutory injunction and for extension of time to file Appellants’ statement of claim and plan, were due for hearing, and were so introduced by the learned senior Counsel for the Appellants, Nnamdi Ibegbu S.A.N. He, however, observed that the Defendants (Respondents herein) had already filed their statement of defence and plan, and took exception to that, urging the Court to strike it out.

Of course, the defence reacted by reminding the Court that on the previous date (14/7/08) fixed for the hearing of the motion for injunction, the Appellants were not ready, and had tried to blame them (Respondents) for not putting in all their papers and that prompted them (Respondents) to undertake to file all their papers before the next adjournment date, and so they had to file their statement of defence and plan, since the Appellants had filed their statement of claim and plan and an application for the same to be deemed duly filed. Counsel for the Respondents added that if the Appellants moved their motion for extension of time to file their statement of claim and plan and for the same to be deemed duly filed, they (Respondents) would not oppose it but would only ask for consequential orders to deem the defence process, duly filed. (See pages 72 and 73 of the Records of Appeal).

Surprisingly, the learned Senior Counsel, faulted that simple and normal procedure, suggested by the Defence Counsel, which, in my opinion, was sound and proper, and went on to, what I consider, unnecessary epilogue, by insisting that the statement of defence and plan, filed by the defence, be struck out for incompetence, before he could argue his motions. He said:

“In conclusion (sic) urge the court to strike out the statement of defence until the statement of claim is duly filed in this case after extension of time has been granted or as directed by his lordship. Even though we are desirous that the motion for interlocutory application be heard on time on (sic) that the proper thing must be done.” (See page 74 of the Records).

After listening to all that, the trial court adjourned the case for Ruling on 10/11/08, and on that date (10/11/08) delivered a ruling tagged “RULLING ON MOTION FOR INTERLOCUTORY INJUNCTION”, wherein he considered, not only the motion for interlocutory injunction, but also the motion for extension of time to file the statement of claim and plan. The court also resolved the oral arguments on the impropriety of filing of the statement of defence while the filing of the statement of claim was yet to be regularised.

In considering the two motions (for injunction and for extension of time), the trial Court used and relied on the processes and written addresses filed by the parties in support of their positions in the two applications. The Court, in the ruling, noted that the Respondent did not oppose the application for extension of time to file Appellants’ statement of claim and plan, but was, vehemently, opposed to the application for the interlocutory injunction, for which they filed counter-affidavits. The motion to file the statement of claim and plan was, therefore, granted and the processes deemed duly filed. But the motion for injunction, which was considered, in-extenso, was refused and dismissed, as the court rather advised the parties to apply for accelerated hearing. On pages 86 to 87 of the Records, the learned trial Court held:

” … Going by the disputed survey plan of the applicants, the area indispute now is not very specified. It may therefore be risky granting such an injunction which may turn out to occasion grave hardship on people who perhaps may have been living there prior to the case. The law is that the courts must at the interlocutory stage confine themselves to those issues necessary for the disposal of the interlocutory application without more. See Orji Vs Zaria Industries Ltd… Finally, in a situation where contending parties by their affidavit differ on every particular material to the case in issue, including the name of the land the area involved, the features therein, its location etc, it would be grave judicial mistake to grant an interlocutory injunction in such a case. Accordingly, having carefully analysed the issues involved in the application, the fact that defendants/respondents’ statement of defence have (sic) been struck out by the Court as being incompetent before the Court and yet the applicant’s (sic) by their case alone now before the Hon. Court have woefully failed to justify the granting of such injunction, it shall be proper to refuse same and it is hereby accordingly refused. Parties are free to apply for accelerated hearing so that the matter can be quickly determined on the merit. Application is therefore dismissed but there shall be no cost to either party.”

At the moment, I do not know what has become of the main matter at the trial Court, but it is not likely the parties had applied for accelerated hearing of the matter or are interested in the quick determination of the matter on the merits, as the trial court advised. Appellants’ who initiated the Suit would have been the party to seek the accelerated hearing, but they appeared to be more interested in the motion for injunction.

It is note worthy that Appellants are not even appealing against the merits of the Ruling, that is, the reasonings and conclusions of learned trial judge, refusing the grant of the interlocutory injunction, but are rather challenging the process/procedure that brought about the Ruling, because, according to them, they never argued the application and that the same was still pending at the trial Court; that the trial judge jumped the gun, when it considered the application in the light of the processes and written addresses filed by parties, without their Counsel telling the court to do so.

After a Court had exercised its discretion in a matter, one way or the other, relating to the application of law or procedure, where a party complains about the exercise of the discretion by the court, in the application of the Law, or conduct of a case, the duty remains that of the party, trying to fault the exercise of the discretion, to show that it was exercised improperly. See GTB PLC Vs Fadco Industries Ltd. (supra); Amoshima Vs State (2011)14 NWLR (pt. 1268)530.

Right from the moment the motions for injunction and for extension of time to file statement of claim came up for hearing, the learned Senior Counsel appeared to constitute a problem and seized initiative from the trial Court (may be, because of his revered standing as a Silk) and, instead of facing the applications he had before the Court, spent all his time and energy on a completely side/remote issue (whether the Respondents’ statement of defence was properly before the Court, having been filed before the statement of claim by Appellants were regularised!) Even when the Respondents’ Counsel came to his rescue, to assure him that he was not opposing Appellants’ motion for extension of time and for deeming the processes filed as duly done, upon which foundation he would make prayers for consequential orders to validate the Respondents’ pre-emptive filings, the Senior Counsel stood his grounds, pretending to demand that the right thing be done.

Of course, the learned Senior Counsel was not doing the right thing, and the trial Court should have called him to order, at that stage, to concentrate on his clients’ case (applications which were the business of court for that day) and not on the case of the Respondents.

Even though the trial Court did not call the Learned Senior Counsel to order, I think it still acted properly, by taking all the applications by the Appellants together, as argued, as well as the side complaint (oral objection) by the Appellants’ Counsel against the statement of defence and plan filed by the Respondents.

In a recent decision of this Court, delivered on 18/6/14, ENUKEME Vs MAZI (2014) LPELR – 23540 (CA), we held that it is normal to hear two or more motions together, even with the substantive matter, where time is of essence, to determine the main issue in contention; that a party cannot complain of being denied fair hearing after he had been duly heard, or given opportunity to be heard.

Since the business of the Court, on 22/9/08, was the hearing of the motion for injunction and the motion for extension of time to file the statement of claim and plan, and the parties had filed their written addresses thereto, which the trial Court duly considered and relied on in reaching the conclusions it made, the Appellants cannot complain of denial of fair hearing. Appellants’ Counsel had all the opportunity in the world to canvass oral argument in relation to the motion for interlocutory injunction on 22/9/08, when the case was called, but he opted to belabour on a completely extraneous matter relating to the competence of the Respondents’ pleadings, which appeared to be a non-issue. Of course their addresses were before the Court and the Appellants’ addresses (main address and further address) had ended with:
“I move in terms” (page 28 of the Records) and “I urge your Lordship to grant the application as prayed.” (page 32 of the Records).

By law, after parties have made their submissions before the Court on a given issue, it is left for the Court to consider the same and base its decision on the submission and evidence before it. The Court does not call on Counsel or parties to address it on how to apply the law or equity to resolve an issue, which the evidence, adduced, has already pointed the way out. Parties can only be called upon to address the Court, when a fresh Issue, not contemplated or considered in the address, was raised by the Court. See the case of Ogwudire Vs Obigwe & Ano CA/OW/132/2011, (an unreported decision of this Court, (pages 26-27), delivered on 18/6/14); Olurunkule V Adisun (2012) 6 NWLR (pt. 1297) 407.
I think, in the circumstances of this case, the learned trial judge was right to go ahead and rule on the merits of the applications before him, based on the addresses filed by the parties, as the Appellants’ Counsel, appeared bent on delaying the proceedings and would not formally argue the motions!
In the case of Newswatch Communications Ltd Vs Atta (2006)12 NWLR (pt. 993) 144 at 170 (cited and relied upon by the two parties to this case), the Supreme Court held:
“Although the Learned trial judge did not formally hear counsel on the motion, he did really consider it in the judgment and came to a conclusion that I cannot fault. In any view, there is no miscarriage of justice by not formally hearing the counsel in the peculiar circumstances of this case, and the peculiar circumstances is that the Learned trial Judge thoroughly considered the motion and gave a brilliant judgment which I cannot fault.”

I think, that, exactly, is also the situation in this case (at hand). Good enough, the Appellants picked no quarrel with the conclusions reached by the Learned trial Court. They merely quarrelled with the process, and that, insincerely, as Appellants, did not fault the grant of their application to file their statement of claim and plan, out of time and the deeming of what they earlier filed as duly done! After all, they did not argue that motion formally too, but the judge, dutifully, considered it, based on their written address and their scanty oral submissions. The Respondents’ Counsel had said that he was not opposed to the Application. The Respondents’ Counsel rather had strongly opposed the application for interlocutory injunction. See page 78 of the Records, where the trial judge said:

“The defendants/respondents, while not opposing the application (for extension of time) responded by filing their counter and further counter affidavits and written addresses in opposition to the motion for interlocutory injunction, filing at the same time their statement of defence in opposition to the statement of claim of the plaintiffs for which an enlargement of time to file and deem duly served on them was being sought. It is this motion that the learned senior advocate, Counsel for the plaintiffs applicant, Nnamdi Ibegbu, SAN stoutly opposed.
The circumstances of these particular motions and the nature of the arguments raised by counsel on both sides have now as it were made the two motions interdependent, hence I intend to take them both at once in this ruling, ie the motion for an order of interlocutory injunction and that of extension of time to file statement of claim, and other annexures therein and deem them duly served.”

I think the learned trial Court exercised its discretion correctly in this case, when it considered the two motions before it, which came up for hearing on the said 22/9/08, on their merits, using the written addresses (arguments) of the parties already before it. If it had succumbed to the style and procedure adopted by the Appellants, it would have undermined the authority and integrity of the Court and opened itself to ridicule. In the case of GTB Plc Vs Fadco Industries Ltd (2013) LPELR 21411 (CA), where defence counsel tried to force the court to adjourn a matter at his own terms and refused to call evidence even when the case was fixed at his instance that date for defence, this court held:
“I think the Appellant’s Counsel was only out to undermine the authority and integrity of the trial court with that affront and the Court would have greatly ridiculed itself and its earlier position… if it had yielded to Appellants’ antic, to adjourn the case on their terms…”

The trial Judge was in charge of his court to direct the proceedings/procedure, in the circumstances. I cannot fault him for adopting that procedure to dispose of the two motions, to make way for the commencement of the substantive case, in the interest of justice.

I also have to be observe that the decision of the trial Court to dismiss the motion for interlocutory injunction, being an interlocutory order, that Appellants needed to seek and obtain the leave of the trial Court or of this Court to appeal. I am not aware that Appellants sought and/or obtained any leave to appeal against that Ruling. They had filed their Notice of Appeal on 11/11/08, a day after the Ruling! See Section 14 (1) (2) of the Court of Appeal Act; Order 7 Rule 4 of the Court of Appeal Rules, 2011. Garba Vs Ummuani (20120 LPELR 9841 (CA).

That defect, alone, I think, was enough to demolish this appeal, though it was not raised by the Respondents. Of course, under Order 6 Rule 6 of this Court’s Rules, this Court can strike out appeal for incompetence for such reasons.

As earlier stated, I cannot see any merit in this appeal and it is hereby dismissed.

Appellants shall pay the Cost of this appeal assessed at fifty Thousand Naira (N50,000.00) only, to the Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother I.G. MBABA, JCA. I agree with his reasoning and conclusion that the appeal lacks merit. I adopt the consequential orders as made by my noble Lord.

FREDERICK O. OHO, J.C.A.: I have read before now the judgment of my brother Ita G. Mbaba, JCA and agree with him that the Appeal completely lacks merit and ought to be dismissed. The learned trial Judge was right to have resolved speedily the two applications pending before him which I expected the learned Senior Advocate to have commended. Frivolous appeals ought to be discouraged in some way and I am of the opinion that the sooner this court begins to wield the proverbial “big stick”, the better for the Administration of Justice, and indeed the only way to stem the ever rising tide of frivolity in the actions filed in our courts.

Appearances

Nnamdi Ibegbu Esq SAN, with him Obiora Nweze Esq.For Appellant

AND

S. C. Ifeakor Esq.For Respondent