CHIEF SIMEON NWANNEWUIHE v. CHRISTOPHER NWANNEWUIHE & ORS. (2007)

CHIEF SIMEON NWANNEWUIHE v. CHRISTOPHER NWANNEWUIHE & ORS.

(2007)LCN/2257(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of March, 2007

CA/PH/232M/2004

RATIO

EQUITABLE REMEDY: WHAT IS THE FUNDAMENTAL OBJECTIVE OF AN INTERLOCUTORY INJUNCTION

It’s trite that the fundamental objective of an interlocutory injunction is to maintain the status quo ante bellum that had existed prior to the commencement of the dispute or action. Generally, the scope of interlocutory injunctions is limited to the actual res in a suit. It’s usually based on specific claim or reliefs sought in the substantive suit or appeal. See Efe Finance Holdings Ltd. v. Osagie Okeke Otegbola & Co. (2000) 5 NWLR (Pt.658) 536, (2000) FWLR (Pt.6) 952 at 962 paragraphs D – E; Adewale Construction Co. Ltd. v. IBWA (1991) 7 NWLR (Pt.204) 498 at 507; Okoya v. Santini (1991) 7 NWLR (Pt.206) 753 at 765. Matters are kept in status quo ante bellum pending the final determination of dispute between the parties; thus enhancing the administration of justice. However, interlocutory injunctions are not granted as a matter of course. PER SAULAWA, J.C.A.

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

Between

CHIEF SIMEON NWANNEWUIHE Appellant(s)

AND

1. CHRISTOPHER NWANNEWUIHE
2. ICHIE BARNABAS NWANNEWUIHE
3. FRANCIS NWANNEWUIHE Respondent(s)

SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court, Imo State in suit No. HON/38/2004 holden in Nkwerre Judicial Division dated the 9th day of September, 200… coram N. B. Ukoha, J. The appellant had on 09/8/04 filed the suit in question wherein he sought the following reliefs:
1. A declaration that the plaintiff (appellant) is the Diakwara of Nwannewuihe Echere family of Umuokwaragwu Umuduru Ekwe in Isu L.G.A. and that by the custom of the parties, pending partition, the plaintiff is exclusively entitled to the possession of all the lands of which the parties father did possessed and that (i) only the plaintiff can allocate alaobi (residential land) to sons of late Nwannewihe Echere from the family lands. (ii) UHU NWANNEWUIHE is not a distributable asset of the parties’ late father as same belongs to the plaintiff exclusively.
(b) An Order of partition of the landed estate of late Nwannewuihe Echere according to the custom of the parties.
(c) An Order compelling the defendants to relocate to their respective alaobi to be shown to them by the plaintiff upon partition of the family lands.
(d) An Order of an injunction restraining the defendants from erecting or continuing to erect structures on Uhu Nwannewuihe or any land of late Nwannewuihe Echere situate and laying at Umuakwaragwu Umuduru Ekwe, within jurisdiction except the lands allocated to the defendants by the plaintiff.
However, as it would appear from the records, prior to the commencement of the hearing of the case the appellant filed an interlocutory application (dated 05/8/04) on 21/9/04 seeking an order of an injunction –
“Restraining the defendants/respondents from erecting, continuing to erect any building on the land in dispute called Uhu Nwannewihe, pending the determination of the substantive suit.”
At the conclusion of the hearing of the submissions of the respective parties counsel on the interlocutory application, the learned trial Judge delivered a ruling to the effect, inter alia thus:-
“Having gone through the submissions of both counsels, the court has found out that more justice will be done in refusing the application than in granting same. In the light of the foregoing, the court therefore found out the applicant has not convinced the court that it will be just and equitable to grant the application than to refuse same. The application is therefore refused. The motion is hereby dismissed.”
Being dissatisfied with the ruling in question, the appellant deemed it expedient to file the instant appeal upon two grounds of appeal. It’s also instructive that both parties have filed and exchanged their respective briefs of arguments which they accordingly adopted on 17/01/07. The appellant has formulated two issues for determination in the brief thereof thus:
“2.1 Issue (a): Ground One
2.2. Was the lower court right in relying on the respondent’s exhibit BN 1 to rule that the appellant has a mile stone to go to convince it that the appellant is indeed the 1st son or diokwara of late Nwannewuihe Echere?
2.3. Issue (b) (Ground Two)
2.4. Was the lower court right by dismissing the appellant’s motion as it did?
It’s the contention of the appellant on 1st issue alluded to above, that the learned trial Judge ought not to have relied on exhibit BN 1 as the five ingredients for its admission or reliance had not been proved or deposed to in the respondents’ affidavit. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1 at 23 -32.
It was further argued that exhibit BN 1 was an inadmissible document in that the five ingredients that were necessary to warrant the lower court to admit or attach weight thereto were not deposed to in the respondents’ counter-affidavit. That, the appellant was right in attacking the said exhibit BN 1 on points of law. See Sodipo v. Lemminkainen OY (1992) 8 NWLR (Pt.2S8) 229 at 244 D – E.
A reference was made to Order 48 rule 5 (1) & (2) of the Imo State High Court (Civil Procedure) Rules, 1988, to the effect that the lower court having sat as a vacation court ought not to have decided the substantive case. That its trite that the lower court lacked jurisdiction to determine the five issues in the substantive matter while considering the interlocutory application. See Sodipo v. Lemmikaine (supra) at 245 paragraphs G – H; Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95 at 98; section 87 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.
It was also alluded to the fact that the primary object of interlocutory injunction is to keep matters in status quo ante bellum. See Falomo v. Banigbe (1998) 7 NWLR (Pt. 559) 679 at 697. That, all that the appellant was required to show at this stage is that his case is not frivolous but substantial enough for the trial court to investigate to enable it to grant the interlocutory injunction to protect the appellant’s legal right. Thus, the court is urged to answer this first issue in the negative.
On the second issue, it was the contention of the appellant that a discretion being judicial, must at all times be exercised not only judicially, but also judiciously. See Agbapuomvu v. Agbapuonwu (1991) 1 NWLR (Pt.165) 33 at 38 paragraph C. SGB Ltd. v. Buraimoh (1991) 1 NWLR (Pt.168) 428 at 436 paragraphs G – H; United Spinners (Nig.) Ltd. V. CB Ltd. (2001) 14 NWLR (Pt .732) 195 at 212 -213 H -D; 220 paragraphs D – G. It’s also contended that the discretion of the court below was neither judicially nor judiciously exercised. Thus, the ruling thereof is perverse. This court has been urged to thus answer the 2nd issue also in the negative and accordingly allow the appeal.
On the other hand, the two issues formulated in the respondents’ brief are, for all intents and purposes, not dissimilar to the appellant’s. The contention of the respondents on both issues in a nutshell is to the effect, inter alia, that –
“An applicant for an interlocutory injunction must among other things show that he had a strong case and that the balance of convenience was on his side … that the applicant failed woefully to satisfy the trite requirements on which interlocutory injunctions are granted.”
The respondents’ counsel has in support of the above proposition cited a plethora of authorities including the notorious case of Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 449; Onyemelukwe v. Attamah (1993) 5 NWLR (Pt.293) 350. It was thus contended that exhibit BN 1 was rightly exhibited in the respondents’ counter-affidavit; that the court below rightly exercised its discretion and refused the application in the interest of justice.
I have amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel in the respective briefs thereof, as well as the various authorities referred to therein. It’s trite that the fundamental objective of an interlocutory injunction is to maintain the status quo ante bellum that had existed prior to the commencement of the dispute or action. Generally, the scope of interlocutory injunctions is limited to the actual res in a suit. It’s usually based on specific claim or reliefs sought in the substantive suit or appeal. See Efe Finance Holdings Ltd. v. Osagie Okeke Otegbola & Co. (2000) 5 NWLR (Pt.658) 536, (2000) FWLR (Pt.6) 952 at 962 paragraphs D – E; Adewale Construction Co. Ltd. v. IBWA (1991) 7 NWLR (Pt.204) 498 at 507; Okoya v. Santini (1991) 7 NWLR (Pt.206) 753 at 765.
Matters are kept in status quo ante bellum pending the final determination of dispute between the parties; thus enhancing the administration of justice. However, interlocutory injunctions are not granted as a matter of course. A court, whether trial or appellate, has a duty to take into an account certain issues before deciding on whether or not to grant an order of interlocutory injunction. Some of the most important of the issues to be considered by the court include –
(i) The applicant’s real prospect of success in the right claimed;
(ii) Balance of convenience;
(iii) Relative strength of the case of the parties;
(iv) Conduct of the parties;
(v) Inadequacy of payment of damages.
See Falomo v. Banigbe (supra) at 694 paragraphs E – H per IGUH, JSC.

However, it’s well settled principle of law that the court has an unfettered discretion to grant or refuse as the case may be, an order of interlocutory injunction. Albeit like all other judicial discretions, the court has an obligation to exercise such discretion not only judicially but also judiciously. See Falomo v. Banigbe (Supra) at 695 paragraphs C – G.
I have deemed it expedient to reiterate, as eluded to above, that the appellant was not required by any rule to establish a prima facie case as a pre-condition to his being granted the interlocutory injunction he had applied for.
However, he has an obligation to satisfy the court by way of an affidavit, that his case is not vexatious or frivolous and that there is serious question to be tried.
It’s instructive that, the gravamen of the appellant’s complaint under the 1st issue is that the trial court ought to have discountenanced exhibit BN 1 as the five ingredients for it’s admission or reliance had not been proved or deposed to in the respondents’ (counter) affidavit. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1 at 23 – 32; Sodipo v. Lemnkanen or (1992) 8 NWLR (Pt.258) 229 at 244 paragraphs D – 1.
It’s trite that customary arbitration is a process of having a dispute amicably settled between parties who voluntarily submit to the decision of community or traditional chiefs or elders. The parties have the freedom to agree to be bound by or resile from the decision of the arbiters. See Ohiaeri v. Akabeze (supra) at 23 paragraphs E – F.
The issue of customary arbitration and vis-a-vis exhibit BN 1 was raised by the 2nd respondent in the counter-affidavit thereof filed in the trial court on 06/9/04. See paragraphs 10 and 11 of the 2nd respondent’s counter affidavit in question thus:-
10 …
This deliberate embarrassment to our family was finally noticed and referred to the chiefs and elders of Umuduru by the Ekwe Council of Eze and Chiefs for resolution and arbitration on the platform of Umuduru Development Union which comprises the entire Umuduru citizens and who settle disputes like the plaintiff’s claim referred to the Union.
11. That the plaintiff and our family submitted to the arbitration which commenced on 14th August, 1993. Each side presented its case and cross-examined the witnesses. The proceedings ended after several sittings on 20th December, 1993. The arbitrators decided that the plaintiff was Ohaejiugwo Ekenta’s son and not that of Chief Nwannewuihe Echere…
The arbitrators for record purposes put their decision in a memo and distributed same to the parties. The copy of the memo is hereby exhibited and marked exhibit “BN 1″….
The said exhibit BN 1 no doubt appears to be unfavourable to the appellant. Paragraphs 1 – 4 of the said affidavit are to the following effect: –
“1. That Simeon’s (appellant’s) mother Adaugo, was married to Ohaejiugwo Ekente.
2. That Adaugo was not remarried by Chief Nwannewuihe Echare when Ohaejiugwo Ekente died.
3. That as per the cultural practice of Umuduru Ekwe people the offspring of a widow is recognised as the child of the deceased husband; hence, by implication, all offsprings of Adaugo are children of Ohaejiugwo Ekente.
4. That Simeon and his brothers and sisters should change their surnames to reflect their actual paternal lineage.”
However, despite the above stunning revelations in the said o exhibit BN 1, the appellant failed to controvert or resile from the contents thereof prior to the delivery of the trial court ruling in question. Thus, warranting the trial court to come to the following conclusion:-
From the said exhibit BN 1 it is clear that both parties subjected themselves to the arbitration willingly. The applicant did nothing to show that he did not accept the decision. There is no evidence (sic) of appeal anywhere against the decision of a competent body by custom. In effect the averment of the respondents evidenced by exhibit BN 1 show that the applicant has a milestone to go to convince this court that he is indeed the 1st son or Diokwara of late Nwannewuihe Echere.
However, in paragraph 16 of the further affidavit (filed on 25/01/05) in support of the motion for an Order of departure from the Rules of this court (filed on 06/10/04) the appellant averred thus:-
“16. That contrary to paragraph 21, at no time did any arbitration and in further of the respondents as alleged.”
However, the fact that the appellant failed to initially react (by way of a further affidavit) to paragraphs 10 and 11 of the respondent’s counter-affidavit filed in the lower court on 20/9/04, notwithstanding. The learned trial Judge was no doubt in error when he relied on exhibit BN 1 to hold as he did at page 18 of the record inter alia that:-
From the said exhibit BN 1 it is clear that both parties subjected themselves to the arbitration willingly. In effect the averments of the respondents evidenced by exhibit BN 1 show that the applicant has a milestone to go to convince this court that he is indeed the 1st son or Diokwara of late Nwannewuihe Echere.
It is trite that it is sufficient to plead estoppel by merely pleading the fact of a previous judgment by a competent court of law. Contrariwise, merely pleading a decision in respect of a customary arbitration without (pleading) the ingredients that project it as an estoppel will not suffice to create a basis of an estopppel. This is undoubtedly so because, not every decision of a customary arbitration panel or tribunal can create an estoppel, unlike that of a court of law. See Ohiaeri v. Akabeze (supra) at 24 paragraphs H, and 25 paragraphs A-B.
In any event, it’s rather obvious in the instant case, that by virtue of paragraphs 10 and 11 of the 2nd respondent’s counter-affidavit in question, the issue of estoppel on the basis of the previous customary arbitration was not actually or clearly averred or pleaded therein. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 418 per Nnaemeka-Agu, JSC thus:-
“Before a party to a case in the High Court which has unlimited jurisdiction under the constitution can defeat the right of his adversary, to have his case adjudicated upon by the courts on the ground that there has been a previous binding arbitration which raises an estoppels between them, four ingredients must be pleaded and established by evidence, namely:-
i. That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
ii. That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding.
iii. That the said arbitration was in accordance with the custom of the parties or of their trade or business: and
iv. That the arbitrators reached a decision and published their award
Most interestingly, AKPATA, JSC in Ohaeri v. Akabeze (supra) at page 24 paragraphs F – G cited the dictum in Agu v. Ikewibe (supra) and approvingly added thus:-
“I will like to add a fifth ingredient and that is that the decision or award was accepted at the time it was made.”
In the light of the above, it is rather obvious that it would be rather speculative for the learned trial judge to merely rely on exhibit BN1 in arriving at the decision thereof to refuse the interlocutory injunction applied for ‘by the appellant. This is so because, the question of whether or not exhibit BN 1 could be used as a ground or basis of an estoppel even if properly pleaded and relied upon (which is not the case in this case) is a question of fact which has to he proved by some credible evidence in the course of the trial. As the Supreme Court per AKPATA, JSC, emphatically asserted in Ohiaeri v. Akabeze (supra) at page 25 paragraphs A – B –
“The party (in this case the respondents) will have to adduce credible evidence of relevant ingredients or incidents necessary to sustain the material plea of estoppel by customary arbitration.”
Thus, in the light of the above postulations, my answer to 1st issue alluded to above is most undoubtedly in the negative. And I so hold.

On the 2nd issue, there is no doubt that having already answered the 1st issue above in the negative, it goes without saying that the answer to the 2nd issue must be in the negative. The learned trial Judge was no doubt in error by relying, as he did on exhibit BN 1 in determining the interlocutory application in question. By so doing, he had rather unwittingly albeit prejudicially delved into the merit of the substantial case. He has no right to do that. It is trite as alluded to above, that judicial discretion, no matter how far reaching, must be exercised not only judicially but also judiciously. It’s rather obvious that in the instant case the learned trial Judge has failed to strictly be guided by the above well cherished golden principle in determining the application in question. The decision of the learned trial Judge is no doubt perverse and prejudicial to the appellant’s right of fair hearing as enshrined under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
As alluded to above, the laid down golden rule is that in interlocutory proceedings, the trial Judge has a duty to desist from making any findings or doing anything that may breach or compromise the substantive action or suit. See SGB Ltd. v. Buraimoh (supra) at 436 paragraphs G – H and 437 paragraphs A. Thus, my answer to the 2nd issue, as alluded to above, is most inveritably in the negative. And I so hold.
Hence, in the light of the above postulations, I have no more hesitation whatsoever in coming to the most inveritable conclusion that this appeal has merit and its accordingly hereby allowed by me. The ruling of the learned trial Judge dated 16/9/04 is thus hereby set aside.
Consequently, I hereby make the following Orders:-
1. That the defendants/respondents are hereby restrained from erecting or continuing to erect any building on the land in dispute called UHU NWANNEWUIHE, pending the determination of the substantive suit.
2. The appellant shall file in the court within one week from today an undertaken as to damages to indemnify the 3 respondents in the event it turns out that the order of injunction in order I above ought not have been granted.
I make no order as to costs.

THOMAS, J.C.A.: I read before now the leading judgment of my learned brother, Saulawa, JCA, just delivered.
I entirely agree that the appeal is meritorious and ought to be allowed. I hereby allow the appeal.
My lord has exhaustively considered the parties’ briefs of argument before he reached the decision. I have nothing more to add on the leading judgment.
I abide with consequential orders made in the leading judgment.

RHODES-VIVOUR, J.C.A.: The late Nwannewuihe Echero was a land owner. The appellant claims to be his first son, or DI-OKWARA. The respondents also claim to be his children, and do not agree with the appellant that he is the first son of their late father. The respondents say the appellant is their cousin.
The first son is a very important and powerful individual. He has exclusive right to possess and allocate land, i.e. ISIOBI, owned by his late father. That is in Umuduru Ekwe in Imo State. With the above in mind the appellant filed a writ of summons in the High Court of Imo State, Nkwere Judicial Division seeking in the main a declaration that he is the first son of the late Chief Nwannewuihe Echero. While the suit was pending he filed on application for an Border: –
Restraining the defendants/respondents from erecting or continuing to erect any building on the land in dispute called Uhu Nwannewuihe pending the determination of the substantive suit.
The learned trial Judge heard the submissions of counsel and refused to restrain the defendants. In refusing to grant an Interlocutory Injunction the learned trial Judge relied heavily on exhibit BN 1 attached to the counter-affidavit of the defendants/respondents. His Lordship said:
” … In effect the averments of the respondent evidenced by exhibit BN 1 show that the applicant has a mile stone to go to convince this court that he is indeed the 1st son or DIOKWARA of Late Echero …”
Exhibit BN 1 is the proceedings and findings of a local arbitration. The learned trial Judge relied on it, contending that with the findings therein the appellant has a mile stone to go to convince the court that he is the 1st son.
Five ingredients must be pleaded and established by the party relying on customary arbitration as binding, these are:
(a) That there has been voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding.
(c) That the said arbitration was in accordance with the action of the parties or their trade or business.
(d) That the arbitrators reached a decision and published their award.
(e) That the decision or award was accepted at the time it was made. See Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) p. 561: Anyabunsi v. Ugwuze (1995) 6 NWLR (Pt. 401) p. 255: Egesimba v. Onuzuruike (2002) 15 NWLR (Pt.791) 466, (2002) 9-10 SC p. 1
I must observe that an injunction is the product of a judicial decision applying established principles in the exercise of a judicial discretion.
My learned brother Saulawa, JCA highlighted these established principles. There is no need one repeating them. An injunction must support a legal or equitable right capable of remedy.
To my mind it is only after a full blown trial can it be decided whether the appellant is indeed the DI-OKWARA, or first son of late Nwannewuihe. While this very important issue remains unresolved the better course would be to restrain the defendants/respondents as prayed.
The sole purpose of an interlocutory injunction is to regulate the position of the parties pending trial whilst avoiding a decision on issues which could only be resolved at trial. Exhibit BN 1 can only be resolved at trial.
My lords by refusing to grant the interlocutory injunction sought by the appellant, the learned trial Judge has in effect decided the main claim in the substantive action by relying on exhibit BN1 without hearing oral evidence. The learned trial Judge was wrong to refuse to grant the injunction. By refusing to grant the injunction his lordship has made findings, pronouncements that should be made only after hearing evidence in the substantive action and not at the interlocutory stage.
The crucial and material point upon which the grant or refusal to grant an interlocutory injunction rests is:
Whether the appellant is the 1st Sons or DI-OKWARA.
On the state of the affidavits and exhibit BN 1, that issue cannot be resolved at the hearing of an application for interlocutory injunction or at the interlocutory stage of proceedings.
Once there are conflicts in affidavits in an application for interlocutory injunction, the Judge should not attempt to resolve the conflicts by calling evidence or by relying on an exhibit that still needs oral testimony to prove it. The Judge should order the parties to maintain the status quo ante bellum and hear the case with dispatch.
Conflicts in affidavits in support and in opposition to an application for interlocutory injunction should never be resolved. If resolved the Judge would have to make pronouncements, as was made in this case, on an issue that can only be made at the substantive stage, after hearing evidence.
The appellant shall file forthwith an undertaking in damages to indemnify the respondents in the event it turns out that this injunction should not have been granted.
It is for this and the elaborate reasons given in the leading judgment of my learned brother, Saulawa, J. that I allow the appeal. I abide by the orders made in the leading judgment.
Appeal allowed.