OGIEMWONYI & ORS v. EKPE
(2020)LCN/15408(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, October 12, 2020
CA/L/593/2017
RATIO
INTERPRETATION OF STATUTE: THE GOLDEN RULE
The golden rule of interpretation requires that the words used in a statute be given their ordinary natural meaning that would best carry the intention of the draftsman. Where the words of a statute are clear and precise, they best declare the intention of the lawmaker. See Nyesom Vs. Peterside (2016) LPELR-40036 and Saraki Vs. FRN (2016) LPELR-40013 among others. PER BALKISU BELLO ALIYU, J.C.A.
DISCRETION OF COURT: GENERAL PRINCIPLE OF LAW ON THE EXERCISE OF THE DISCRETIONARY POWER OF COURT
The general principle of law settled by long line of authorities regarding the exercise of the Court’s discretion is that it must be done judicially and judiciously considering the unique facts and circumstances of the case under consideration. Therefore though the grant of orders of interim injunction and/or extension of the lifespan of such orders are provided for by rules of Court, the Courts cannot be too rigid or be tied strictly by those rules in the exercise of that discretion. In other words, the Court is required to consider what is right and equitable having regards to the peculiar facts and circumstances of the case before it in reaching its decision on how to exercise that discretion. That is why it is the law that in a matter of discretion, no one case is superior to the other for the simple reason that no two cases or facts are exactly the same. See Saraki Vs. Kotoye (supra) and Koleoso & Ors. Vs. Ogunyemi & Ors.(2011) LPELR-4450 (CA). PER BALKISU BELLO ALIYU, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
- VICTOR OGIEMWONYI 2. PARTNERSHIP SECURITIES COMPANY LIMITED 3. PARTNERSHIP INVESTMENT COMPANY LIMITED 4. SBDC MICROFINANCE BANK LIMITED 5. PARTNERSHIP ASSET MANAGEMENT 6. PARTNERSHIP CAPITAL MANAGEMENT LIMITED 7. LIFECARE HMO LIMITED 8. FUNKE OGEIMWONYI 9. ARESE MICHAEL UGWU 10. ANDREWS ELUENI 11. CHRISTOPHER EHIOGIE APPELANT(S)
And
ARNOLD ONYEKWERE EKPE RESPONDENT(S)
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Lagos State (lower Court) delivered 24th April 2017 in respect of a motion ex-parte filed on the 6th April 2017 in suit No: LD/2891CMW/2017. The Respondent as the claimant commenced the suit via a writ of summons accompanied by a statement of claim filed on the 23rd March 2017 by which he prayed the lower Court for declaratory reliefs against the eleven (11) Appellants who were the Defendants before the lower Court.
The background facts of the case in summary are that the Respondent is the owner of 90 million shares of Ecobank Transnational Incorporated (ETI), which he wanted to sell at the Nigeria Stock Exchange market. He had a discussion in that regard with the 1st Appellant following which he signed a mandate in favour of the 2nd Appellant, a company owned by the 1st Appellant for the Appellants to sell his 90million shares at N16.00 per share and at an agreed commission of 20% to be paid to the Appellants from the proceeds of the sale. But unknown to the Respondent, and even before he signed the mandate for the sale, the 1st Appellant had actually sold 40million of the ETI shares and deposited the proceeds into the bank account of the 2nd Appellant rather than into the bank account of the Respondent. This action of the 1st and 2nd Appellants was in violation of the Nigerian Stock Market Rules. The Respondent also claimed that the substantial part of the proceeds of the sale of his 40million shares of ETI was used for the benefit of the 1st, 3rd to 11th Appellants. The 1st Appellant used the proceeds to purchase other shares in the name of the 5th and 6th Appellants for the benefit of all the Appellants, from which the Respondent asserted that the Appellants received dividend in the sum of $80, 000 USA which was not remitted to him (Respondent).
It was also the claim of the Respondent before the trial Court that the 1st Appellant admitted in writing to have misappropriated the proceeds of the sale of the Respondent’s ETI shares and diverted same to various persons and entities including the other Appellants. He therefore claimed against the Appellants the sum of N953, 322, 127. 46 and $80, 000 USA being the proceeds of the sale of his ETI shares.
Upon the facts stated in his statement of claim, the Respondent/Claimant filed a motion ex-parte and a motion on notice along with the originating processes through which he prayed the lower Court for the following orders of interim injunction:
1. AN ORDER OF PROPRIETORY INJUNCTION, pending the hearing and determination of the Claimant’s motion on notice dated… day of March 2017, restraining the 1st, 5th, 6th, 7th 8th, and 9th Defendants, their servants, agents or others howsoever, directly or indirectly, and by any means whatsoever from:
a. In any way disposing of, dealing with or diminishing the value of the proceeds of sale of the 96, 078, 682 shares of Ecobank Transnational Incorporated sold by the 2nd Defendant between 30th June 2016 and 6th September 2016 for N1, 253, 322, 128 (one billion, two hundred and fifty three million, three hundred and twenty two thousand, one hundred and twenty eight Nigerian Naira) (the proceeds of the sale) and the dividend of US$80, 000 (Eighty thousand United States Dollars) received and retained by the 2nd Defendant in respect of some of those shares (the ‘dividend’) or any part of the proceeds of the sale or the dividend, or
b. In anyway disposing of, dealing with or diminishing the fruits or proceeds, including any assets which represents in whole or in part or are derived from the proceeds and/or the dividend, and any interest earned or other income received or derived from the proceeds of sale and/or dividend or any part of the proceeds of sale or dividend.
2. An order directing each of the 1st, 5th, 6th, 7th, 8th and 9th Defendants;
a. Within seven days of service of a copy of this order upon him, her or it and to the best of his, her or its ability and after making all reasonable enquiries (but in any event within the said time limit), to swear to an affidavit and file the same in this Court, stating the location, nature and value of all assets which represents in whole or in part or are derived from the proceeds and fruits, including any interest earned of the proceeds of the sale and the dividend, regardless of whether or not such proceeds are in the defendants’ own name and whether they are solely or jointly owned , and:
b. Without prejudice to the generally of the forgoing, to state in the said affidavit:
c. The name and address of all persons including financial institution holding such assets;
d. The names and numbers of all accounts holding any such assets together with the name and address where such account is held, in whose name and the amount in such account;
e. The details of all trusts which have received any such assets including the names and addresses of the trustee. Without prejudice to the generality of the foregoing, the defendants must inform the Claimant/applicant’s solicitors within seven (7) clear days of the service of this order upon them and to the best of their abilities and after making all reasonable enquiries (but in any event within the said time limit) of:
i. The names and addresses of all persons, including financial institutions holding such assets;
ii. The names and numbers of all accounts holding any such assets together with the addresses where such account is held, in whose name and the amount in such accounts; and
iii. The details of all trusts which have received any of such assets including the names and addresses of the trustees
3. AN ORDER OF FREEZING INJUNCTION pending the hearing and determination of the Claimant’s motion herein dated the—day of March 2017, restraining the 1st, 5th, 6th, 10th and 11th Defendants, their servants, agents or others howsoever directly or indirectly and by any means whatsoever, save with the prior consent of this Court from:
a. Removing from Nigeria any assets which are within the territory of the Federal Republic of Nigeria up to the value of N1, 000, 000, 000 (one billion Nigerian Naira) and US$80, 000 (Eighty United States dollars).
b. In any way disposing of, dealing with or diminishing the value of any of his or its assets whether in or outside Nigeria up to the above value.
4. AN ORDER directing each of the 1st, 2nd, 3rd, 4th, 5th, 6th, 10th, and 11th Defendants;
a. Within seven clear days of service of a copy of this order upon him or it and to the best of his or its ability and after making all reasonable (but in any event, within the said time limit), to swear to an affidavit and file the same in this Court, stating all his or its assets whether in his own name or not and whether solely jointly owned, giving the value, location and details of all such assets
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5. For such other order/orders as this Honourable Court may deem fit to make in the circumstances.
After considering the affidavit in support of the ex-parte application and the facts stated in the statement of claim, the learned trial Judge granted all the orders sought by the Respondent against the Appellant in its ruling delivered on the 30th March 2017.
However, only three Appellants namely, the 2nd, 3rd, and 4th Appellants were served with the interim order, the originating processes and the motion on notice, and 8 others were not served. This prompted the Respondent to file another ex-parte application on the 18th April 2017 and sought leave of the lower Court to serve the 1st, 8th, 5th, 6th, 7th, 9th, 10th and 11th Appellants with the order and all other processes by substituted means. The lower Court’s proceedings of 24th April 2017, shows that this application was withdrawn in view of the appearance of N. Mene-Josiah Esq. for the Appellants, and his undertaking to receive the services of all the processes on behalf of the 8 Appellants that were not served. Consequently, the motion ex-parte for substituted service was withdrawn and struck out. See pages 1173- 1174 of the record of appeal.
In view of the non-service of the Order on the 8 out of the 11 Appellants, the Respondent filed another motion ex-parte on the 6th April 2017 (see pages 1175 to 1181 of the record of appeal), by which he prayed the lower Court for an order extending the effective period/lifespan of the ex-parte Interim Orders of Injunction it made on the 30th March 2017 against the Appellant. The learned trial Judge delivered a bench ruling (page 1174 of the record of appeal), on the application thus:
Pursuant to Order 39 Rule 3(4) of the High Court of Lagos State (Civil Procedure) Rules 2012, the effective period of ex-parte orders granted by this Honourable Court on 30th March 2017 are hereby extended for a further period of 7 days pending the determination of the motion on notice dated 23rd March 2017. Return date is 11th May 2017.
Rather than file an application before the trial Court to set aside the two orders ex-perte made on 30th March 2017 and the above order, or respond to the motion on notice that was to be heard within 7 days, the Appellants chose to allow the 7 days to lapse and then filed a notice of appeal on the 3rd May 2017 against the above bench ruling of the lower Court. The record of appeal was transmitted on the 11th May 2017 and the Appellant’s brief of argument settled by Tayo Oyetibo SAN was filed on 23rd May 2017, wherein the learned senior counsel proposed three issues for the determination of this appeal thus:
1. Whether the lower Court was wrong in law to have extended on April 24, 2017, the effective period of its earlier ex parte orders made on 30th March, 2017 when the said orders had abated after they were made. (Ground One).
2. Whether the lower Court was not wrong in law to have extended the effective period of its earlier ex parte orders made on 30th March, 2017 when the Appellants had not been served with the Respondent’s motion on notice in compliance with the condition precedent as stipulated by Order 39 Rule 3(4) of the Rules of that Court. (Ground Two)
3. Whether the lower Court was not wrong in law to have extended the effective period of its earlier ex parte orders on 30th March, 2017 without paying any regard to the principles applicable to the exercise of that power as contained in Order 39 Rule 3(4) of the Rules of that Court. (Grounds Three and Four).
In opposing this appeal, the Respondent filed his brief of argument settled by Babajide Ogundipe Esq. on the 20th September 2017 wherein he identified the following three issues for the determination of this appeal:
1. Whether the lower Court lacked the jurisdiction to grant the ex parte orders of 30th March 2017.
2. Whether the lower Court lacked the jurisdiction to extend the lifespan of the ex parte orders made on 30th March, 2017.
3. Whether the lower Court was right to have extended the life span of the ex parte orders made on 30th March, 2017 given the circumstances of the case
The Appellants also filed a Reply brief on the 26th February 2019 but deemed properly filed on 15th July 2020.
APPELLANT’S SUBMISSIONS
In arguing their issue one, the learned senior counsel conceded, citing Section 13 of the High Court of Lagos State, that the lower Court has an inherent power and discretion to make injunctive orders where it appears just and convenient to do so, but such ex parte orders of injunction are usually made to last for a few days and not to continue to be in force for unduly long period of time. He relied on the cases of FAGBOLA Vs. TITILAYO [2005] 2 NWLR (Pt. 909)1 TSA IND. Vs. ABACUS MERCHANT BANK LTD [1996] 2 NWLR (Pt. 430) 305 at 317 for support. He further submitted that by the provision of Order 39 Rule 3(3) of the High Court of Lagos State (Civil Procedure) Rules, 2012, the ex parte order of injunction made by the lower Court on the 30th March 2017automatically lapsed and ceased to exist after seven days. He argued that it is always the law, as provided by the lower Court’s Order 39 Rule 3(3) that ex-parte orders are meant to have a short lifespan of seven days and no more. It was his argument that as at 24th April 2017 when the learned trial Judge extended the lifespan of its orders of 30th March 2017, that Order had ceased to exist, having abated and lapsed by effluxion of time. He relied on the cases of Fagbola Vs. Titilayo Plast. Ind Ltd (2005) 2 NWLR (pt. 909) 1, TSA Ind. Vs. Abacus Merchant Bank Ltd (1996) 2 NWLR (pt. 430) 305 at 317 and Maiduguri Metropolitan Council and Anor. Vs. Ezekor (2013) LPELR-22792 (CA) for support.
Learned senior counsel was of the view that even though the lower Court has the power to extend the March 30th ex-parte order by virtue of Order 39 Rule 3(4) of its Rules, but it could no longer exercise that power to extend the March 30 Order which had abated by effluxion of time, and in effect it stands vacated and unenforceable. He placed reliance on OLIVER Vs. DANGOTE INDUSTRIES LIMITED [2009] 10 NWLR (Pt. 1151) 467 and others for support and to urge us to hold that the learned trial Judge was wrong to extend the orders of 30th March 2017 when the orders were not capable of being extended having lapsed.
In arguing the Appellants’ proposed issue two, the learned silk referred us to Order 39 Rule 3(4) of the Lower Court’s Rules and submitted that the service of the motion on notice on the Respondent is the condition precedent to the extension of the lifespan of the ex-parte order of interim injunction that is in issue. He further argued that where the condition as to service of motion on notice is not satisfied, the lower Court has no right to exercise its powers to extend the effective period of its ex-parte orders. He relied on the case of NIGERCARE DEV. CO. LTD Vs. A.S.W.B. [2008] 9 NWLR (Pt. 1093) 498; ATOLAGBE Vs. AWUNI [1997] 9 NWLR (Pt. 522) 536 in support.
The learned senior Counsel also referred us to the proceedings of the lower Court of April 24, 2017 located in pages 1173 to 1174 of the record of appeal, which showed that Mr. Mene-Josiah, the counsel who appeared on behalf of the Appellants had informed the Court that the Appellants had not been served with any process relating to the suit and that they only became aware of the suit after they were informed by their bankers that the Court’s Orders would be enforced by the bank. He also drew our attention to the fact that indeed the non-service was confirmed by Mr. Onuoha, the learned counsel for the Respondent, consequent upon which Mr. Mene-Josiah undertook to accept service on behalf of the Appellants. Upon these facts, he argued that the exercise of the lower Court’s power to extend the March 30th Order was wrongful, because when it extended the lifespan of the orders on the 24th April 2017, only the 2nd, 3rd and 4th Appellants were served while others were not served. He submitted that the decision of the lower Court of 24th April 2017 was perverse and ought to be set aside.
We were urged upon to so hold and resolve issue two in favour of the Appellants.
With regards to issue three, the learned senior counsel submitted that the power to extend interim orders under Order 39 Rule 3(4) of the Rules is only exercisable where such extension is necessary in the interest of justice or to prevent an irreparable or serious mischief. Referring to the decision of the lower Court found at page 1174 of the record, he submitted that the Court did not consider the applicable principles for extension of ex parte orders as provided under Order 39 Rule 3(4) of the Rules. He referred to the case of OKECHUKWU Vs. OKECHUKWU [1989] 3 NWLR (Pt. 108) 234 to argue that the discretion of the Court must be exercised with great care and caution, and that in this case, the extension of the lifespan of the interim orders was made per incuriam and should therefore be set aside.
The learned senior counsel further contended that the lower Court had no jurisdiction to make the 30th March order of interim injunction because paragraphs 2 and 4 of the orders were final or perpetual which cannot be made ex-parte. The orders also violated the Appellant’s right to privacy and fair hearing guaranteed by Sections 36(1) and 37 of the Constitution of the Federal Republic of Nigeria 1999 as amended as well as in violation of Section 55 Sheriffs and Civil Process Act. The orders compelled the Appellants to give evidence in a civil suit without their consent. Thus since the lower Court lacks the jurisdiction to make the orders of 30th March 2017 in the first place, there was no basis for the extension of the lifespan of that order as it did on the 24th April 2017. He urged the Court to also resolve issue three in favour of the Appellants.
RESPONDENT’S SUBMISSIONS
On the Respondent’s proposed issue one, learned counsel referred us to the cases of KOTOYE Vs. CBN [1989] 1 NWLR (Pt. 98) 419; BANK BOSTON NA USA Vs. ADEGOROYE [2000]2 NWLR (Pt. 644) 217 and submitted that the purpose of an interim order for injunction on an ex parte application is to prevent an imminent irreparable harm or damage likely to be occasioned to the applicant in the event that the defendant is placed on notice. Thus the order is made to maintain status quo for a limited period of time and the underlying factor to be considered by the Court in the grant of such order is real urgency. He argued that in this case, the Affidavit in support of the ex parte motion dated March 23, 2017 clearly disclosed the circumstances such as the release of the 1st Respondent from prison custody and the likelihood that he may take steps to dissipate the subject matter of the suit. This created a situation of real urgency that warranted the grant of the 30th March interim orders and it was properly granted in the circumstance.
In response to the Appellant’s argument that the interim orders infringed on the Appellants’ fundamental rights to privacy and fair hearing, learned counsel submitted that the Appellants failed to show in what way these rights were breached by the orders. He relied on the case of ENEKWE Vs. I.M.B. LTD [2006] NWLR (Pt. 1013) 46; BANK BOSTON NA USA Vs. ADEGOROYE (supra); KINLOCH (AP) Vs. HER MAJESTY’S ADVOCATE (SCOTLAND) (2012) LPELR – 17971 (UKSC) to argue that grant of interim order of injunction ex-parte is not unconstitutional. He also argued that paragraphs 2 and 4 of the Order are disclosure and they are legitimate and necessary to police orders of Mareva Injunction in order to preserve the assets from dissipation especially in cases of transnational fraud. On the contention of the Appellants that the orders of the 30th March 2017 are final orders, learned Respondent’s counsel referred to the definition of a “final order” and “perpetual order” as expounded by this Court in the case ofAnimashaun & Ors. Vs. Bakare & Ors.(2010) LPELR-9029(CA) and Ugwu & Ors. Vs. Agbowo (2014) LPELR- 22894 (CA), to argue that the orders of 30th March 2017 cannot be said to be final or perpetual orders.
On the Appellants’ argument that the interim orders violated Section 55 of the Sheriffs and Civil Processes Act, the Respondent submitted that the said Section which deals with judgment debt is inapplicable to this case because ex-parte orders cannot be said to be money judgment for which the defendant is liable, but are simply preservatory and ancillary orders. That the lower Court has the jurisdiction by virtue of Orders 38 and 39 of its Rules and the Respondent complied with the requirement for the grant of the interim orders pending the determination of the notice. He relied on the case of BONIFACE EZEADUKWA Vs. PETER MADUKA & ANOR (1997) LPELR – 8062 (CA) for support and urged the Court to resolve Respondent’s issue one in his favour.
With regards to the Respondent’s proposed issue two, learned counsel submitted on the authority of Azuh Vs. UBN (2014) LPELR-22913 (SC), that the lower Court has the jurisdiction to extend the lifespan of the ex-parte order of injunction made on the 30th March 2017, not withstanding the provisions of Order 39 Rule 3(4) of its Rules considering the circumstances under which the orders were made in the first instance. He therefore urged the Court to resolve this issue in favour of the Respondent.
On the Respondent’s issue three, learned counsel conceded that ex-parte orders of injunction are meant to last for a short time pending the hearing of the motion on notice. That this was acknowledged by the lower Court’s rules in Order 39 Rule 3(3); however, the same rules of the lower Court also made provisions for extending the lifespan of such orders under Rule 3(4) of Order 39. He further argued that the interim orders were made pending the hearing of the motion on notice, which means that the order will last up to the date when the motion on notice shall be heard as was held in the case of Azuh Vs. UBN (supra). He argued that the ex-parte application the Respondent filed on the 7th day of the lifespan of the orders for the extension of the lifespan of the orders was out of abundance of caution. He argued that the Respondent complied with the rules of the lower Court when he applied for the extension of the lifespan of the orders before the abatement of the orders and therefore the determining factor of the jurisdiction of the Court to extend the lifespan of the interim orders should be the date the application was filed rather than the date the order was granted. He argued that the cases of MT Makhambet Vs. Incorporated Trustees of Indigenous Shipowners Association of Nigeria & Anor. (2011) LPELR-5201 and Oliver Vs. Dangote Ind. Ltd (2009) 10 NWLR (pt. 1151) 467 relied upon by the Appellants’ learned senior counsel are not relevant to this case because they were based on the Federal High Court Rules of Civil Procedure that provide automatic lapse of ex-parte orders within 14 days. The Rules of the lower Court are different because by its Order 39 Rule 3(4) of the lower Court’s rules, it has the power to extend such orders beyond 7 days.
He urged that the provisions of the said Rule 3(4) should be interpreted disjunctively and not conjunctively, which would make proper sense and accord with the decision of this Court in Seplat Petroleum Development Vs. Brittaniau Nig. Ltd &Ors. (2014) LPELR-23126 (CA), especially in view of the urgency that warranted the grant of the orders. Conclusively, the learned Respondent’s Counsel argued that this appeal is not real and tangible, but rather borders on speculation and conjectures as the Appellants if aggrieved by the orders of the lower Court ought to have filed an application before the lower Court the have them discharged, or addressed the pending motion on notice on its merit. He relied on the cases of Provisional Liquidator, Tapp. Ind. Vs. Tapp Ind. (1995) 5 NWLR (pt. 393) 9 (SC)and Igbinoba Vs. Igbinoba & Ors. (2003) 2 NWLR (pt. 803) 39 (CA) in support. He urged the Court to resolve issue three in favour of the Respondent.
APPEALLANTS’ REPLY BRIEF
The learned senior counsel for the Appellants raised objection to the Respondent’s proposed issues 1 and 2. That the Respondent raised these issues from one ground of appeal, (ground 3) in violation of the settled principle of law against proliferation of issues. He submitted that the two issues are incompetent and should be struck out, relying on the decisions of the Supreme Court in the cases of Yadis Nig. Ltd Vs. Great Nigeria Insurance Company Ltd (2007) LPELR-3507 and Roe Ltd Vs. UNN (2018) LPELR-43855 (SC) for support.
However in the event that the Court declines to strike out the Respondent’s issues one and two, the learned counsel replied to the argument canvassed thereon as shown below.
On the contention of real urgency that warranted the grant of the interim orders because the 1st Appellant was released from prison custody, the learned senior counsel argued that this argument of the Respondent is self-defeating and untenable because there are 11 Appellants/Defendants in the Respondent’s suit before the lower Court. As such the peculiar facts and circumstances relating to a single party cannot create a case of urgency for the other 10 parties. In reply to the Respondent’s argument that the interim order of injunction made by the lower Court was to last until the determination of the motion on notice, learned senior counsel argued that it does not mean that the orders will still not lapse by effluxion of time under Order 39 rule 3(3) of the Rules of the lower Court which provide that an ex-parte order cannot last for more than 7 days unless it is extended.
On the argument of the Respondent’s learned counsel to the effect that having filed the application for the extension of the lifespan of the ex-parte orders before they abated, the lower Court had the power to extend same; the Appellants’ leaned counsel argued that there is no legal support for this argument. He posited that if the Respondent was to be correct in that argument, it means the order of the Court would not be necessary, because so long as the motion filed for extension remains unheard, the order remains in force, which is certainly not the intendment of the lower Court’s Rules of Civil Procedure.
On the proposition of the Respondent’s learned counsel to construe Order 39 Rule 3(4) disjunctively rather than conjunctively, learned senior counsel for the Appellant relied on the cases of Ogunyade Vs. Oshunkeye (2007) LPELR-2355 (SC) and Farasco Nig. Ltd & Anor. Vs. Peterson Zochonis Industries PLC (2010) LPELR-4142 (CA) to argue that the word “and” used in Order 39 Rule 3(4) of the lower Court’s rules is a conjunctive word and must be so construed. He posited that the disjunctive interpretation proposed by the Respondent would strip that rule of its meaning. He also contended that the two conditions contained in the said rule must be present before the lower Court could extend the lifespan of the ex-parte orders. He further argued that the Respondent misconceived the applicability of Order 5 Rule 1(2) when he argued that its provisions could cure the irregularity of the non-service of the orders of the Appellants. He submitted that the omission to ensure service of the order on the Appellants is not a failure as to time, place, or manner or form, but a fundamental breach of the condition precedent to the application of Order 39 Rule 3(4) of the lower Court’s rules, which in this case he submitted that it affected the jurisdiction of the lower Court to make the order of extension of the lifespan of the ex-parte orders. As such, Order 5 Rule 1(2) cannot cure that defect. He relied on the cases of FBN Plc Vs. T. S. A. Ind. Ltd (2010) LPELR-1283 (SC) and Teno Engineering Ltd Vs. Adisa (2005) LPELR-3142 (SC) where the fundamental nature of service of processes on a party was reiterated. He urged the Court to reject all the argument of the Respondent for lacking in merit and to allow this appeal.
RESOLUTION
The learned senior counsel for the Appellants raised what seemingly is an objection to the competence of issues 1 and 2 proposed by the Respondent for the determination of this appeal. His objection is a challenge to the competence of the said issues on the ground that they are clearly distilled from a single ground of appeal, to wit, ground four of appeal. While I agree with the Appellants’ learned senior counsel that no more than one issue can be formulated from a single ground of appeal, and this is trite, but having considered the argument canvassed in respect of each of the two issues being challenged, I am of the view that, notwithstanding the manner in which the issues were couched, the arguments in respect of same were directly in response to the arguments canvassed by the Appellants in their joint brief of argument. In fact the Respondent’s issue one was stated to have been couched from ground 3 of appeal while his issue 2 was couched from grounds 1 and 2 of appeal. Indeed the issues formulated are not dissimilar with the issues formulated by the Appellants as emanating from the same grounds of appeal. For this reason, I am unable to accept the contention of the learned silk that the two issues formulated by the Respondent are incompetent and that argument and hereby discountenanced.
As stated above, the Appellants and the Respondent have each formulated three identical issues for the determination of this appeal. All the issues have the central theme of the competence of the lower Court to extend the lifespan of the ex-parte order of injunction as it did on the 24th April 2017. For this reason I am of the view that the appeal can be resolved on the Appellants’ issue one and therefore I collapse their issues 2 and 3 into issue 1 for the determination of this appeal, for the sake of brevity and the avoidance of unnecessary repetition.
Indeed, the facts of the proceedings at the lower Court leading to the appeal before us is not in dispute. As a matter of fact, the gravamen of this appeal stems from the exercise of the discretion of the lower Court to grant an extension of the lifespan of ex-parte order made by the lower Court upon the Respondent’s application. The general principle of law settled by long line of authorities regarding the exercise of the Court’s discretion is that it must be done judicially and judiciously considering the unique facts and circumstances of the case under consideration. Therefore though the grant of orders of interim injunction and/or extension of the lifespan of such orders are provided for by rules of Court, the Courts cannot be too rigid or be tied strictly by those rules in the exercise of that discretion. In other words, the Court is required to consider what is right and equitable having regards to the peculiar facts and circumstances of the case before it in reaching its decision on how to exercise that discretion. That is why it is the law that in a matter of discretion, no one case is superior to the other for the simple reason that no two cases or facts are exactly the same. See Saraki Vs. Kotoye (supra) and Koleoso & Ors. Vs. Ogunyemi & Ors.(2011) LPELR-4450 (CA).
With the principle of law as my guide, I must state upfront that it is the proceedings of the lower Court of the 24th April 2017 (copied in pages 1173 to 1174 of the bulky record of appeal) that triggered this appeal and therefore, they are very germane to its determination. I have earlier stated in details the background facts of this case at the beginning of this judgment, and indeed it must be born in mind also that only the processes filed by the Respondent were before both lower Court and this Court for consideration. Now, before the 24th April 2017 proceedings, three out of the eleven Appellants were served with the interim order of injunction and the other processes including the Motion on Notice, but the remaining nine Appellants could not be served for various reasons. However, on that date, all the Appellants were represented by a counsel N. Mene-Josiah Esq. who informed the lower Court that:
We have information that this Honourable Court made Ex-parte orders on 30th March 2017 against the Defendants and the return date for this is today. The situation is that the claimant did not serve this process on the Defendants, rather, the defendants was (sic) informed by his (sic) bank (which is not party to this suit) that a letter was written to them by the claimant’s counsel, conveying the order to them and instructing them not to allow the Defendants deal with the Account.
In response to the above submissions of the Appellants’ counsel, the Respondent’s counsel informed the lower Court that:
We were only able to serve the 2nd, 3rd and 4th Defendants which explained the need for the Motion ex-parte for substituted service. There is an affidavit of Non-service, detailing the efforts made by the Court’s sheriffs to serve the defendants.
The counsel for the Defendants then responded and informed the lower Court that:
I undertake to accept service on behalf of all the Defendants that have not been served. (Underlining supplied)
The above proceedings showed that the statement of the Appellants’ counsel implying that none of the Appellants was served, and he was only there because their bankers received a letter from the Respondent’s counsel was not correct. Indeed contrary to this information three of the Appellants (whom he represented) were duly served and his further statement indicating his readiness to accept service for the other defendants who have not served confirmed that the falsity of his earlier postulation before the lower Court.
The Respondent’s learned counsel then drew the lower Court’s attention to the motion for extension of the lifespan of the order that was just served on 8 out of the 11 Appellants/Defendants, but was earlier served on the three others within its lifespan. These are the facts and circumstances placed before the learned trial Judge to be considered and upon which he granted the extension of the lifespan of the ex-parte orders. The Appellants by this and this appeal questioned the legality and/or the competence of the order in view of the provisions Order 39 Rules 3 (3) and (4) of the lower Court’s Rules, which provides:
(3) An order of injunction made upon an application ex-parte shall abate after seven (7) days;
(4) A Judge may upon application extend the effective period of an order made ex parte if he is satisfied that the motion on notice has been served and that such extension is necessary in the interest of justice or to prevent an irreparable or serious mischief. The application for such extension shall be made before abatement of the order and the extension shall not be for a period exceeding seven (7) days from the day the extension is granted.
The golden rule of interpretation requires that the words used in a statute be given their ordinary natural meaning that would best carry the intention of the draftsman. Where the words of a statute are clear and precise, they best declare the intention of the lawmaker. See Nyesom Vs. Peterside (2016) LPELR-40036 and Saraki Vs. FRN (2016) LPELR-40013 among others.
The above quoted provisions of the lower Court’s Order 39 Rules 3(3) and (4) are simple and clear, and should therefore be given their ordinary grammatical sense in order to apply them to the facts and circumstances disclosed in the proceedings of the lower Court of 24th April 2017 reproduced supra. It is obvious that the provisions intended that any interim order made/issued by the lower Court ex parte, shall abate after seven days, but, its lifespan may be extended by the lower Court upon an application filed before its abatement. There is no contest on this between the parties. What is in contention and indeed the crux of this appeal is the time in which the extension of the order could be validly made.
From the simple and clear wordings of Rule 3(4) of Order 39 (supra), the first consideration is that an application for the extension of its lifespan has been made before it expired. Secondly, the motion on notice, which the order was made to last till its determination should have been served on the defendants. The use of the word “and” between these two considerations in the rule joined them conjunctively. However, where any of these two scenarios are not applicable, that is to say; no application has been filed and no service of the motion of notice has been effected, then the lower Court was given two other alternatives to consider, namely whether in the circumstances, it is equitable to grant the extension of the lifespan of the interim order where “such extension is necessary in the interest of Justice or to prevent an irreparable or serious mischief”, such as for example, to prevent the loss of the subject matter of the suit. I rely on the case of Fayemi & Anor. Vs. Oni &Ors. (2010) LPELR- 4145 (CA), where Salami, J.C.A. as he then was, speaking for this Court held that:
It is trite law that whenever the word ‘or’ is used in a statute, it bears a disjunctive meaning. Section 18(3) of the Interpretation Act is relevant. The use of the word ‘or’ is therefore a separating factor of preceding provisions from the one coming under, and thus giving a sense of complete and an Independent identity. See the cases of Obasse v. National Judicial Council (2008) All FWLR (Pt.434) 1637 at 1657 and Rim v. Emefo (2001) FWLR (Pt.66) 792 at 813.
It is for the above highlighted reasons therefore, I cannot accept the contention of the learned senior counsel for the Appellants that the three scenarios stated in Rule 3(4) of Order 39 must co-exist, or that the service of the Motion on Notice as the only necessary pre-condition for the extension of the interim order. In my view the draftsman of that rule envisaged a situation where the motion on notice was not served on the defendant, and even another scenario where there was no an application for the extension or it was filed after the expiration of the interim orders, then the lower Court was not left helpless, but was given an alternative as I highlighted supra. That is the flexibility nature of the exercise of the Court’s discretion particularly as regards the exercise of discretion on interim or interlocutory injunctions that ensures that the hands of the judge is never tied down by the rules of Court from doing what is right and equitable.
Now considering the proceedings of the lower Court of 24th April 2017, which I highlighted supra, some of the Appellants were served with the interim orders and the Court’s processes as reported by the Respondent’s counsel and admitted by the Appellants’ counsel. Then those that could not be served for one reason or the other were served instantly through their counsel.
I think it was just and equitable that the lifespan of the interim orders be extended in these circumstances. And if the order had lapsed by effluxion of time as strenuously argued by the learned silk, then the trial Judge could and was right to resuscitate and give life back to them. I see no reason why not, if doing that “is necessary in the interest of justice or to prevent an irreparable or serious mischief” as provided by the said rule.
At this juncture I also consider it important to examine the exact order made by the learned trial Judge in his ruling delivered on the 30th March 2017 located at pages 1105 to 1121 of the record of appeal, thus:
THE ORDERS ARE GRANTED AS PRAYED pending the hearing and determination of the Motion on notice.
It is clear that the interim orders were made to last until the hearing and determination of the motion on notice. This Court had held severally that the interim orders of injunction could validly made to last till further order or until the determination of the motion on notice. See Int. Tobacco Co. Plc Vs. British American Tobacco Nig. Ltd & Anor.(2013) LPELR 20494 and Koleoso & Ors. Vs. Ogunyemi & Ors.(2011) LPELR-4450 (CA).This is why I am in agreement of the learned Respondent’s counsel’s argument to the effect that the application for the extension of the lifespan of the order of interim injunction was not necessary since they were made in the first place to last till the hearing and the determination of the motion on notice.
In the final analysis, I cannot fault the exercise of the learned Judge of the lower Court in granting the extension of the lifespan of the interim orders of injunction in view of the facts and the circumstances of this case. Litigation is not a game of hide and seek and should never be allowed to be so. As always, we are concerned with substantial justice of the case under consideration. I have no hesitation whatsoever in answering the issue in the negative. I resolve the sole issue against the Appellants. Consequently, I find no iota of merit in this appeal and I dismiss it. I affirm the ruling of the lower Court delivered on the 24th April 2017 in respect of the application ex-parte filed in suit No. LD/2891CMW/2017. Cost of Two Hundred and Fifty Thousand Naira (N 250, 000) awarded to the Respondent against the Appellants.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the painstaking and insightful judgment prepared by my learned brother, BALKISU BELLO ALIYU, J.C.A., and wish to add by way of emphasis that in cases of this nature where an ex parte order of Injunction is made by a Court against a party the most expeditious and cost-saving remedy to seek, in appropriate cases, is to put in an application before the Court that granted the ex parte order to have vacated or set aside upon the party affected becoming aware of the ex parte order vide Titilayo Plastic Industries Ltd. and Ors. v. Fagbola (2019) 14 NWLR (pt. 1691) 88 where the Supreme Court elaborately addressed the issue of ex parte order of injunction with particular reference to the Federal High Court with the caution by His Lordship, Peter-Odili. J.S.C. at pages 130 — 131 of the law report that an order of interim injunction is not an open-ended restraint rather it is for a short, specified period of time (in cases of real urgency)with the intendment of garbing it with a preservation quality at the early stage of the case and is not expected to be a victory to be used against the other party for all time or indefinitely.
I respectfully observe so (supra) in the light of the fact that the ruling appealed against was made on 24.04.2017, while the appeal from it was heard on 15.07.20, more than 3 years ago, which might not have been the case had the Court below, in appropriate cases, been called upon to set aside or vacate its order of ex parte injunction.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the succinct and erudite leading judgment delivered by my learned brother: BALKISU BELLO ALIYU, J.C.A. I endorse, in toto, the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.
Appearances:
…For Appellant(s)
…For Respondent(s)
