MUSA & ORS v. ORUME & ORS
(2022)LCN/17163(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, August 19, 2022
CA/YL/234/2019
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
1. VERONICA MUSA 2. ILIYA EZEKIEL 3. TARABA INVESTMENT AND PROPERTIES LTD APPELANT(S)
And
1. BARRISTER BENJAMIN ORUME 2. MALLAM NASIRU AUDU BABA 3. MR. POLYCARP ADI 4. ALHAJI HASSAN ADAMU 5. ALHAJI YUSUF M. BABA 6. MRS. PHOEBE ISAH 7. HON. TANKO BOBBO ANDAMIN 8. MR. JACOB S. YAMNJU 9. TARABA MICRO FINANCE BANK NIG. LTD RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
I also hold the view that jurisdictional issue is paramount and fundamental in nature is also important to be resolved before any other issue at hand in an appeal of this magnitude. See OKOCHA SAMUEL OSI Vs. ACCORD PARTY & ORS (2016) LPELR-41388 (SC) (Pp. 14-15 paras. F) As Per SANUSI, JSC and thus:
“Jurisdiction is said to be a threshold issue which is of paramount importance and therefore when raised at any stage, the Court before which it was raised MUST mandatorily look at it at the earliest stage or opportunity and determine whether it has jurisdiction or not. This is more so because any proceeding conducted without jurisdiction, no matter how well or admirably conducted, is a nullity. See ELUABE v OMOKRI (2004) 11-12 SC 60.”
Furthermore, jurisdiction is never treated with laxity because no matter how parties argued an appeal and no matter how good the argument is a nullity. Because once a matter initiated on a wrong procedure without following the due process of law cannot activate the jurisdiction of the Court that is the life wire of the matter. Hence, the Court will become incompetent to hear the suit in question. See also NULEC INDUSTRIES PLC v DYSON TECHNOLOGIES LIMITED & ANOR (2022) LPELR-57866 (SC) (Pp. 30 paras. A) As Per NWEZE, JSC and wit:
“My Lords, it has long been settled that a Court is only competent to adjudicate upon a matter when it is initiated by due process and upon fulfilment of the conditions precedent to the exercise of its jurisdiction. See MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341, SHUGABA v UBN PLC (1999) LPELR-3068 (SC), DREXEL ENERGY AND NATURAL RESOURCES LTD & ORS Vs. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962 (SC).” PER ABUBAKAR, JC.A.
WHETHER OR NOT RULES OF COURT ARE MEANT TO BE OBEYED
On this issue clearly, rules of Court are meant to be obeyed by the litigants and accordingly, the Appellants refer this Honourable Court to Order 26 Rule 5(3) of the Federal High Court (Civil Procedure) Rules, 2019 (hereinafter referred to as the Rules of the trial Court) which emphatically states as follows:
“(3) An applicant SHALL NOT make an application for an injunction ex parte UNLESS he files with it a motion on notice in respect of the application”.
Therefore, above out rightly indicate that the process of the Respondents needs to be regularised ab initio. Then, this Honourable must, first of all, distinguish between Interim and Interlocutory injunctions respectively. See also in GOLD & ANOR Vs. AMCON (2022) LPELR-57232 (CA) (Pp. 28-29 Paras. C) As Per OJO, JCA and thus:
“I like to commence the resolution of these two issues by reiterating the settled position of the law that there is a difference between an interim order of injunction and an interlocutory injunction. An interim injunction is one granted pending the determination of a Motion of Notice. It is one granted to last until a named date. An interlocutory injunction is one made pending the determination of a substantive suit. See AZUH Vs. UNION BANK OF NIGERIA PLC (2014) 11 NWLR (Part 1419) 580; GROUP DANONE Vs. VOLTIC NIGERIA LIMITED (2008) 7 NWLR (PT. 1087) 637; OLUWA GLASS COMPANY LIMITED VS. EHINLANWO (1990) 7 NWLR (PT. 160) 14 AND OBEYA MEMORIAL SPECIALIST HOSPITAL Vs. ATTORNEY-GENERAL FEDERATION (1987) 3 NWLR (Part 60) 325.
In KOTOYE Vs. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (Part 98) 419 at 440, PARAGRAPHS B-C, Nnaemeka-Agu, JSC held as follows: “So much confusion and conflict appear to have surrounded the use of the expressions “ex parte”, “interim”, and “interlocutory” in the briefs of counsel that I deem it necessary to begin by examining these terms. Indeed, even in decided cases, this lack of agreement as to the precise meanings of these words is pretty obvious. At times they are used as if “interlocutory” and “interim” were interchangeable.
In KUFEJI Vs. KOGBE (1961) 1 ALL NLR 113 at 114, an application for an injunction which was fully argued and deliberated upon and in every way had all the attributes of an interlocutory injunction was referred to as interim injunction. In fact, “interim” and “interlocutory” were freely used as if they were interchangeable.” PER ABUBAKAR, JC.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
In line with their submission this Court relied on the Apex Court decision in REV. DR. CHRISTIAN OKEKE Vs. MR. JOSEPH UWAECHINA (2022) LPELR-57291 (SC) (Pp. 26-27 paras. A) As Per AUGIE, JSC and thus:
“Fair hearing or lack thereof is not an expression of mere rhetoric or empty verbalism but a fundamental right of a citizen guaranteed in the Constitution, and a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a party alleging the breach must show clearly that the said right is violated or breached – See GBADAMOSI v DAIRO (2007) 3 NWLR (Pt 1021) 282 SC.
It is not enough for a party alleging such a breach to merely wave the banner of fair hearing and expect this Court to jump to attention. The facts of his case must show that the said right was indeed violated – See ADEBAYO V. A.-G., OGUN STATE (2008) 7 NWLR (Pt. 1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows:
Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation. They make the defence in most inappropriate cases because they have nothing to canvass in their favour. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional provision available to a party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking.” PER ABUBAKAR, JC.A.
MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, sitting in Jalingo before S D Pam, Judge that was delivered on the 2nd day of December 2019 in respect of the Motion Ex-Parte no. FHC/JAL/M/81/2019 and sought for the following reliefs as:
1. LEAVE of this Honourable Court for the substituted service of the processes of this Honourable Court on all the Defendants by dropping them with any staff of the 3rd Defendant at its office in Taraba Investment House Jalingo, Taraba State.
2. AN ORDER of this Honourable Court restraining the (sic) 1st Defendants and any other persons appointed by the 2nd and 3rd Defendants as Managing Director or Directors of the 9th Plaintiff and from doing anything prejudicial to the interest of the Plaintiffs pending the hearing and determination of the pending application.
3. AN ORDER abridging the time within which the Defendants are to file and serve their reply to 8 days.
4. AND for such order or orders this Honourable Court may deem just to make in the circumstance of this case. See Pages 73-91 of Record of Appeal.
The above prayers in the Ex-Parte Motion No: FHC/JAL/M/81/2019 was granted as prayed by the trial Court as to Orders of substituted service, Interim injunction and Abridgment of Time against the Appellants that have resulted into this present appeal. See Page 178 of Record of Appeal.
Dissatisfied with the said order of the Motion No: FHC/JAL/M/81/2019 by the trial Court and its further grant of the Orders of substituted service, Interim injunction and Abridgment of Time against them, the Appellants filed their original Notice of Appeal on the 12th day of December, 2019 and same can be found at Pages 184-188 of Record of Appeal.
Furthermore, during the hearing of the appeal on 08/06/2022 the Record of Appeal was transmitted on 30/12/2019 and deemed 08/09/2020 and also the amended Notice of Appeal filed on 20/10/2021 and deemed 07/03/2022. The Appellants further filed a Motion on Notice for their appeal to be heard based on the Appellants’ brief and was granted as prayed.
The Learned Counsel for the Appellant adopted the Appellants’ joint brief of Argument filed on 20/10/2021 and deemed 07/03/22 as representing his argument for the appeal. He urged this Honourable Court to allow the appeal, struck out Motion No: FHC/JAL/M/81/2019, and award (N50,000,000.00) Fifty Million Naira and while on the other hand, the learned Counsel for the Respondent Milkman Martin Esq. who was in Court informed the Court that they did not file any Brief and have nothing to add.
In the Appellants’ brief of Argument, the learned Counsel for the Appellant formulated Three (3) issues for the determination in this appeal as viz:
ISSUE NO.1
WHETHER Motion No: FHC/JAL/M/81/2019 was competent in law and the trial Court had the jurisdiction to entertain same and grant the Orders of Substituted Service, Interim Injunction and Abridgment of Time therein? (Distilled from Grounds 1, 2, 3 & 6 of Amended Notice of Appeal.)
ISSUE NO. 2
WHETHER in granting the Order of Interim Injunction against the Appellants without there being a subsisting Motion on Notice duly filed and served on them, the trial Court was not in breach of Appellants’ Right to Fair Hearing as Constitutionally guaranteed? (Distilled from Ground 4 of Amended Notice of Appeal.)
ISSUE NO. 3
WHETHER it was proper in law for the trial Court to have simultaneously made Orders of Interim Injunction and abridgment of time against the Appellants in Motion No: FHC/JAL/M/81/2019?
(Distilled from Ground 5 of the Amended Notice of Appeal).
ARGUMENT OF ISSUE NO. 1
WHETHER Motion No: FHC/JAL/M/81/2019 was competent in law and the trial Court had the jurisdiction to entertain same and grant the Orders of substituted service, Interim Injunction and abridgement of time therein?
The Appellants urged this Honourable Court to answer this issue in the negative and proceed to allow this appeal on that basis of the following reasons as adumbrated hereunder:
The Appellants submitted that a calm and careful perusal of Pages 73-91 of Record of Appeal would show that at the trial Court, the Respondents filed a Motion Ex-parte with NO: FHC/JAL/M/81/2019 on the 2nd day of December, 2019, wherein they sought the reliefs mentioned above.
The Counsel further submitted that as can be gleaned from Page 73 of Record of Appeal, the said MOTION NO: FHC/JAL/M/81/2019 was filed at 11:16 am on the 2nd day of December, 2019 and same was heard and granted by the learned trial Judge on the same 2nd day of December, 2019. See the ruling of the trial Court at pages 181-183 of Record of Appeal. Counsel also submitted that the most intriguing and amazing part is not even the unusual and extraordinary speed with which the said motion was filed, heard, determined and granted the three principal reliefs as stated in the face of it.
Indeed, this exact same attitude was deprecated by this Honourable Court in AFRIC MINING CO. LTD Vs. NIDB LTD (1999) LPELR-6496 (CA) Pages 5-8, paragraph C and ASHIRU NOIBI Vs. FIKOLATI (1987) 1 NWLR (Part 52) 619 at 630.
He further submitted that the Respondents’ Counsel in his written address in support of motion, the subsistence or pendency of a suit or action is a condition precedent to the filing and granting of an application for Interim Injunction. He relied on UTB LTD & ORS Vs. DOLMETSCH PHARMACY (NIG) LTD (2007) LPELR-3413 (SC), HARMAN PICTURES NV Vs. OSBORNE (1967) 1 WLR 723 and NIGERIA CIVIL SERVICE UNION Vs. ESSIEN (1985) 3 NWLR (Pt. 12) 27 306 as to whether there is a serious question or substantial issue or case to be tried.
See AMERICAN CYANAMID Vs. ETHICON LTD. (1975) AC 396 and OBEYA MEMORIAL SPECIALIST HOSPITAL AYI-ONYEMA FAMILY LIMITED Vs. ATTORNEY GENERAL OF THE FEDERATION (1987) 3 NWLR (Pt. 60) 325. One of the most important principles is the preservation of the res, which is the subject matter of the suit.
Similarly, in KOTOYE Vs. CBN (1989) 1 NWLR (Part 98) 419. The granting of an interim injunction is not a matter of course or routine, slavishly following an application. The Court must take into consideration the same principles in their relevance to the facts of a case.
The Appellants argued that based on the strength of these statutory and judicial authorities above the Ex-Parte Motion no. FHC/JAL/M/81/2019 was incompetent in law ab initio and as such the trial Court lacked the jurisdiction to entertain and grant it.
The Court was referred to page 74 of Record of Appeal, one of the Reliefs sought for by the Respondents in the trial Court, specifically Relief 2, is an Order of Interim Injunction. Now, a careful perusal of the entire records of appeal would show that the Respondents woefully FAILED to simultaneously file a Motion on Notice for Interlocutory Injunction along with Motion No: FHC/JAL/M/81/2019, which is a Motion Ex-parte for Interim Injunction. In essence, the Respondents filed Motion No: FHC/JAL/M/81/2019 for Interim Injunction alone and not simultaneously with a motion on notice for interlocutory injunction.
The Appellants submitted that the failure to simultaneously file a Motion on Notice for Interlocutory Injunction along with Motion No: FHC/JAL/M/81/2019, which is a Motion Ex-parte for Interim Injunction, has undoubtedly rendered the said Motion No: FHC/JAL/M/81/2019 incompetent in law. The Counsel urged this Honourable Court to so hold.
This is so because the law is now well settled beyond equivocation that an application for interim injunction which is filed alone and not simultaneously with a Motion on Notice for interlocutory injunction, is incompetent, null and void in law. See Order 26 Rule 5(3) of the Federal High Court (Civil Procedure) Rules, 2019 (hereinafter referred to as the Rules of the trial Court).
Indeed, this statutory provision was given judicial imprimatur by this Honourable Court whilst dealing with the exact same situation See AFRIC MINING CO. LTD Vs. NIDB LTD (SUPRA) Pages 5-8, Paragraph C
The Appellants submitted that considering the irrefutable facts that the Ex-Parte Motion was not anchored on any existing suit and same was not simultaneously accompanied by a Motion on Notice, hence the legal effect is that the trial Court lacked the jurisdiction to entertain same and grant the Orders by the trial Court are null and void in law and this Honourable Court is entitled to ex Debito Justitiae to have them set aside. See AFRIC MINING CO. LTD Vs. NIDB LTD (SUPRA), SKENCONSULT (NIG) LTD. Vs. GODWIN SEKONDY UKEY (1981) 1 SC 6 Any defect in the competence of a Court is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. He cited MADUKOLU Vs. NKEMDILIM (1962) 1 All NLR 587; (1962) 2 SCNLR 341; OBIMONURE Vs. ERINOSHO (1966) 1 All N.L.R. 250 and NWOSU Vs. UDEAJA (1990) 1 NWLR (Part 125) 188.
Finally, the Appellants submitted that based on the submissions above as well as the authorities cited too on the whole, urged the Honourable Court to resolve issue one (1) in favour of the Appellants and against the Respondents.
RESOLUTION TO LEGAL ARGUMENT ISSUE ONE (1)
From the summations above, the Appellants’ Counsel argument goes to the issue of jurisdiction, which is a key substance in the matter to be pointed out with. I also viewed the issue as fundamental to reckon with in finding the solution to the problem.
Therefore, by careful look at the brief of the Appellants on this issue, one must go along with them. Where it was clearly stated that the Ex-Parte Motion was not anchored on any existing suit and same was not simultaneously accompanied by a Motion on Notice, hence the legal effect is that the trial Court lacked the jurisdiction to entertain same and grant the Orders by the trial Court are null and void in law and this Honourable Court is entitled to Ex Debito Justitiae to have them set aside. Where the Appellants’ relied on AFRIC MINING CO. LTD Vs. NIDB LTD (SUPRA)
I also hold the view that jurisdictional issue is paramount and fundamental in nature is also important to be resolved before any other issue at hand in an appeal of this magnitude. See OKOCHA SAMUEL OSI Vs. ACCORD PARTY & ORS (2016) LPELR-41388 (SC) (Pp. 14-15 paras. F) As Per SANUSI, JSC and thus:
“Jurisdiction is said to be a threshold issue which is of paramount importance and therefore when raised at any stage, the Court before which it was raised MUST mandatorily look at it at the earliest stage or opportunity and determine whether it has jurisdiction or not. This is more so because any proceeding conducted without jurisdiction, no matter how well or admirably conducted, is a nullity. See ELUABE v OMOKRI (2004) 11-12 SC 60.”
Furthermore, jurisdiction is never treated with laxity because no matter how parties argued an appeal and no matter how good the argument is a nullity. Because once a matter initiated on a wrong procedure without following the due process of law cannot activate the jurisdiction of the Court that is the life wire of the matter. Hence, the Court will become incompetent to hear the suit in question. See also NULEC INDUSTRIES PLC v DYSON TECHNOLOGIES LIMITED & ANOR (2022) LPELR-57866 (SC) (Pp. 30 paras. A) As Per NWEZE, JSC and wit:
“My Lords, it has long been settled that a Court is only competent to adjudicate upon a matter when it is initiated by due process and upon fulfilment of the conditions precedent to the exercise of its jurisdiction. See MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341, SHUGABA v UBN PLC (1999) LPELR-3068 (SC), DREXEL ENERGY AND NATURAL RESOURCES LTD & ORS Vs. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962 (SC).”
To this end, the above-cited cases reassured the Appellant that a building cannot be raised on nothing-there must a foundation underneath holding to it. The Appellants already pointed out that the Respondents in the trial Court, specifically Relief 2, is an Order of Interim Injunction. Which was Motion Ex-parte for Interim Injunction. In essence, the Respondents filed Motion No: FHC/JAL/M/81/2019 for Interim Injunction alone and not simultaneously with a motion on notice for interlocutory injunction.
Indeed, this Honourable Court deprecated this exact same attitude by plethora of cases cited by the Appellants in their brief. However, this issue is resolved in favour of the Appellants and against the Respondents.
ARGUMENT OF ISSUE NO. 2
WHETHER in granting the Order of Interim Injunction against the Appellants without there being a subsisting Motion on Notice duly filed and served on them, the trial Court was not in breach of Appellants’ Right to Fair Hearing as Constitutionally guaranteed?
The Appellants urged this Honourable Court to answer this Issue in the affirmative and proceed to allow this appeal on this point. He also cited Order 26 Rule 5(3) of the Federal High Court (Civil Procedure) Rules, 2019 which clearly mentioned that an ex-parte order of injunction must have a subsisting pending application.
The Counsel further submitted that the quoted provisions of the Rules of the trial Court is a safeguard against the breach of the Right to Fair Hearing of a Defendant before the trial Court, in accordance with the mandatory provisions of Section 36(1) of the 1999 Constitution (As Amended).
He also submitted that contrary to these mandatory provisions of the law, the trial Court entertains and grants an ex-parte application which was not filed along with a Motion on Notice, then the said Court has clearly breached the Right to Fair Hearing of the Party against whom the ex-parte orders were made. See AFRIC MINING CO. LTD Vs. NIDB LTD (SUPRA) AT PAGES 8-10, PARAGRAPHS D-C, SKENCONSULT (NIG) LTD v GODWIN SEKONDY UKEY (SUPRA); MADUKOLU Vs. NKEMDILIM (SUPRA) and OKAFOR Vs ONEDIBE (2003) 9 NWLR (Part 825) 399 at 414.
The Appellants finally submitted that based on cited authorities it is without doubt granting an Interim Injunction against the Appellants without there being a subsisting Motion on Notice duly filed and served on them, the trial Court was clearly in breach of Appellants’ Right to Fair Hearing as constitutionally guaranteed urged this Honourable Court to so hold.
He urged that this issue No. 2 should be resolved in their favour against the Respondents and further allow the appeal on that basis.
RESOLUTION TO LEGAL ARGUMENT ISSUE TWO (2)
On this issue clearly, rules of Court are meant to be obeyed by the litigants and accordingly, the Appellants refer this Honourable Court to Order 26 Rule 5(3) of the Federal High Court (Civil Procedure) Rules, 2019 (hereinafter referred to as the Rules of the trial Court) which emphatically states as follows:
“(3) An applicant SHALL NOT make an application for an injunction ex parte UNLESS he files with it a motion on notice in respect of the application”.
Therefore, above out rightly indicate that the process of the Respondents needs to be regularised ab initio. Then, this Honourable must, first of all, distinguish between Interim and Interlocutory injunctions respectively. See also in GOLD & ANOR Vs. AMCON (2022) LPELR-57232 (CA) (Pp. 28-29 Paras. C) As Per OJO, JCA and thus:
“I like to commence the resolution of these two issues by reiterating the settled position of the law that there is a difference between an interim order of injunction and an interlocutory injunction. An interim injunction is one granted pending the determination of a Motion of Notice. It is one granted to last until a named date. An interlocutory injunction is one made pending the determination of a substantive suit. See AZUH Vs. UNION BANK OF NIGERIA PLC (2014) 11 NWLR (Part 1419) 580; GROUP DANONE Vs. VOLTIC NIGERIA LIMITED (2008) 7 NWLR (PT. 1087) 637; OLUWA GLASS COMPANY LIMITED VS. EHINLANWO (1990) 7 NWLR (PT. 160) 14 AND OBEYA MEMORIAL SPECIALIST HOSPITAL Vs. ATTORNEY-GENERAL FEDERATION (1987) 3 NWLR (Part 60) 325.
In KOTOYE Vs. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (Part 98) 419 at 440, PARAGRAPHS B-C, Nnaemeka-Agu, JSC held as follows: “So much confusion and conflict appear to have surrounded the use of the expressions “ex parte”, “interim”, and “interlocutory” in the briefs of counsel that I deem it necessary to begin by examining these terms. Indeed, even in decided cases, this lack of agreement as to the precise meanings of these words is pretty obvious. At times they are used as if “interlocutory” and “interim” were interchangeable.
In KUFEJI Vs. KOGBE (1961) 1 ALL NLR 113 at 114, an application for an injunction which was fully argued and deliberated upon and in every way had all the attributes of an interlocutory injunction was referred to as interim injunction. In fact, “interim” and “interlocutory” were freely used as if they were interchangeable.”
On the issue of fair hearing, I concur with the Appellants that the Ex-Parte Motion for injunction filed without a subsisting suit that is a motion on notice to be served on them as Defendants at the trial Court is a breach of their right to fair hearing because the trial Judge went ahead to hear one side only without hearing the adverse party. In line with their submission this Court relied on the Apex Court decision in REV. DR. CHRISTIAN OKEKE Vs. MR. JOSEPH UWAECHINA (2022) LPELR-57291 (SC) (Pp. 26-27 paras. A) As Per AUGIE, JSC and thus:
“Fair hearing or lack thereof is not an expression of mere rhetoric or empty verbalism but a fundamental right of a citizen guaranteed in the Constitution, and a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a party alleging the breach must show clearly that the said right is violated or breached – See GBADAMOSI v DAIRO (2007) 3 NWLR (Pt 1021) 282 SC.
It is not enough for a party alleging such a breach to merely wave the banner of fair hearing and expect this Court to jump to attention. The facts of his case must show that the said right was indeed violated – See ADEBAYO V. A.-G., OGUN STATE (2008) 7 NWLR (Pt. 1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows:
Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation. They make the defence in most inappropriate cases because they have nothing to canvass in their favour. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional provision available to a party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking.”
Consequently, I also resolve the above issue two (2) in favour of the Appellants and against the Respondents.
ARGUMENT OF ISSUE NO. 3
WHETHER it was proper in law for the trial Court to have simultaneously made Orders of Interim Injunction and abridgment of time against the Appellants in Motion No: FHC/JAL/M/81/2019?
The Appellants urged the Honourable Court to answer this issue in the negative and proceed to allow the appeal on this ground and urged the Honourable Court to so do.
The Appellants submitted that on the 2nd day of December 2019, the learned trial Judge whilst granting the Ex-parte application of the Respondents as clearly stated on Pages 182 & 183 of Record of Appeal.
The Counsel submitted that a calm perusal of the said orders made by the learned trial Judge would clearly show that he simultaneously granted against the Appellants an order of injunction and abridgment of time. Now, the simple question that hereby arises is whether by law, it was proper for the learned trial Judge to have simultaneously granted such orders against the Appellants.
The Appellants further submitted that the answer to this poser is a resounding NO. This is so because by virtue of the Federal High Court (Civil Procedure) Rules, 2019 (hereinafter referred to as the Rules of trial Court), an Order for Injunction and an Order for Abridgment of Time are Orders that can only be granted in the alternative. In other words, both orders can only be granted by the trial Court, as alternatives to the other. This much is aptly prescribed by Order 28 Rule 5(1) of the Rules of the trial Court.
He argued that going by this clear and unambiguous provision of Order 28 Rule 5(1) of the Rules of trial Court, the learned trial Judge had no jurisdiction to simultaneously grant such orders against the Appellants, as he did in the Ex-Parte Motion No: FHC/JAL/M/81/2019. He also relied on OKOLO Vs. UNION BANK OF NIG. PLC (2004) ALL FWLR (Part 197) at 981 RATIO 2, IKPEKPE Vs. WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471 (SC), the Apex Court aptly stated at Pages 13-14, Paragraphs E-D and NIGERIA DEPOSIT INSURANCE CORPORATION Vs. CENTRAL BANK OF NIGERIA & ANOR (2002) 7 NWLR (Part 766) 273.
The Appellants submitted that it is on the strength of these authorities it is improper in law for the trial Court to have simultaneously made Orders of Interim Injunction and Abridgment of Time against the Appellants on the 2nd day of December 2019 in Motion No: FHC/JAL/M/81/2019.
It is for this reason that the Appellants urged this Honourable Court to resolve Issue No. 3 in favour of the Appellants and further proceed to set aside the twin Orders of Interim Injunction and Abridgment of Time simultaneously made by the trial Court against the Appellants on the 2nd day of December, 2019 in Motion No: FHC/JAL/M/81/2019.
Finally, the Appellants urged this Honourable Court to make the following Orders:
(a) AN ORDER of Court allowing the appeal and setting aside the Orders of the trial Court made on the 2nd day of December, 2019 in Motion No: FHC/JAL/M/81/2019;
(b) AN ORDER of Court awarding the sum of Fifty Million Naira (N50,000,000.00) only against the Respondents as damages in line with the undertaking for damages made by the Respondents at the trial Court and,
(c) AN ORDER of Court striking out Motion No: FHC/JAL/M/81/2019 for incompetence and for lack of jurisdiction.
RESOLUTION TO LEGAL ARGUMENT ISSUE THREE (3)
After carefully studying the submission of the Appellants on this issue 3, I refer myself to the Federal High Court (Civil Procedure) Rules, 2019 which are clearly stated in Order 26 Rule 5(3) and thus:
“Motion ex parte for injunction shall be accompanied by motion on notice.
(3) An applicant shall not make an application for an injunction ex parte unless he files with it a motion on notice in respect of the application”.
Therefore, the Rules of the Court (herein refers as the trial Court) clearly stated that an Ex-Parte Motion for an injunction SHALL be accompanied with a motion on notice as it is and to be obeyed by all and sundry in filing such processes in the trial Court. The Appellants also relied on AFRIC MINING CO. LTD Vs. NIDB LTD (SUPRA). Hence, this Honourable agreed with the submission of the Appellants and the Apex Court’s decision of AZUH Vs. UNION BANK (2014) LPELR-22913 (SC) (Pp 42 PARAS. D) As Per MOHAMMED, JSC and thus:
“The law on this subject of ex-parte interim injunctions is also well settled that a person who seeks an interim order ex-parte while also applying for an interlocutory injunction as was the situation in the present case, files two motions simultaneously, one ex-parte asking for the interim order and the other one on notice applying for an interlocutory injunction pending the determination of the substantive suit. The Court before which the applications are filed takes the ex-parte motion, and if satisfied that it has merit ex-facie, grants it making the order to last up to the date when the motion on notice shall be heard. See KOTOYE Vs. CENTRAL BANK OF NIGERIA (SUPRA).”
This is more so that one of the conditions that must be fulfilled by an Applicant seeking for an Order of Interim Injunction is to show that he had filed and/or commenced a substantive suit before the Court. Indeed, Respondents’ Counsel who filed the said Motion No: FHC/JAL/M/81/2019 before the trial Court even raised this point in his written address in support of the Motion, wherein he emphatically stated at Paragraph 3.06 of Page 9 of his written address that is at Page 89 of Record of Appeal.
The net effect therefore is that the learned trial Judge ordered for the substituted service of the processes of a non-existent suit, made an Order of Interim Injunction with respect to the subject matter of a non-existent suit and also ordered for the abridgment of time to Eight days within which the Appellants were to file their Reply to a non-existent suit.
Similarly, the Appellants submitted that it is of course mind-boggling that before proceeding to grant the Reliefs sought for by the Respondents in Motion No: FHC/JAL/M/81/2019, the learned trial Judge did not carefully peruse the processes in the Court’s file to ascertain whether a substantive suit had been first filed before the Court.
In view of the above, this issue three (3) is also resolved in favour of the Appellants and against the Respondents.
Consequently, I hold that this appeal has merit it is hereby upheld/affirm, the Motion No: FHC/JAL/M/81/2019 is hereby struck out for incompetence and lack of jurisdiction, the orders of the trial Court in the said Motion made on 2nd day of December, 2019 is also set aside. The sum of (N50,000,000.00) Fifty Million Naira awarded against the Respondents as damages in line with the undertaking for damages made by the Respondents at the trial Court.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading in draft the copy of the lead judgment just delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. I concur with the reasoning and conclusion contained in the lead judgment by my Lord that the appeal is meritorious and should be allowed. The appeal is also allowed by me with nothing further to add.
Appearances:
J. A. Oguche, Esq. For Appellant(s)
Milkman Martin, Esq. For Respondent(s)