PROPHETESS OLUWANIYI V. CHIEF OLUFEMI ADEWUMI & ORS
(2010)LCN/4068(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/24/2005
RATIO
IRREGULAR PROCEDURE: WHETHER A PARTY THAT DID NOT OBJECT TO AN IRREGULAR PROCEDURE DURING THE TRIAL CAN BE HEARD TO COMPLAIN AGAINST IT ON APPEAL
The oral application for interim injunction order was made by the 1st respondent’s learned counsel in the presence of the appellant’s learned counsel. He did not object to the mode of the application. I take it that he consented to the irregularity in procedure and cannot now be heard to complain against it on appeal. See Osigwe V. Ps PLS Management Consortium Ltd. and Others (2009) 1 S.C.N.J. Page 1 at Page 18 per Musdapher, J.S.C., thus: “The mere fact that there was no formal application in writing did not render the decision wrong. Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity. See Saude V. Abdullahi (1989) 4 NWLR (Pt.116) 388.” See also Ayanwale and Others V. Atanda and Another (1988) 1 S.C.N.J. Page 12. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
DISTINCTION BETWEEN AN ORDER OF INTERIM INJUNCTION AND AN ORDER OF INTERLOCUTORY INJUNCTION
The main feature that distinguishes an order of interim injunction from an order of interlocutory injunction is that an order of interim injunction is made to preserve the status quo until a named date or until further order, or until a motion on notice for interlocutory injunction can be heard. It is to be made in cases of real urgency where it is shown that an irretrievable mischief or damage may be occasioned before the application on notice can be heard or in a case where hearing has commenced, before the conclusion of the hearing, See: Kotoye V. C.B.N and CRS (1989) 1 N.S.C.C. (Vol. 20) 238 at 251 lines 38-53; (1989) 1 NWLR (98) 419: Obeya Memorial Specialist Hospital V. A.G. Federation (1987) 3 NWLR (60) 325. There must be a situation of real urgency and the court must consider the balance of convenience between the parties. It is certainly not granted as a matter of course or routine. See also: U.T.B. Ltd V. Dolmetsch Pharmacy (Nig.) Ltd. (2007) 16 NWLR (1061) 520 at 545-546 G-H, PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
INTERFERENCE WITH THE DISCRETION MADE BY A TRIAL JUDGE: CIRCUMSTANCE UNDER WHICH A COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION MADE BY A TRIAL JUDGE
I am of the view and do hold that this is a clear case of an arbitrary exercise of discretion by the learned trial judge. This court therefore has a duty to interfere with the decision. See: R. Benkay (Nig). Ltd v. Cadbury (Nig) Plc (2006) 6 NWLR (976) 338 at 367 D-E; Ogolo V. Ogolo (2006) 5 NWLR (972) 163 at 180 G-H; Oyekanmi V. NEPA (2000) 15 NWLR (690) 414 at 438, Ejorkele v. Nwafor & Ors (2005)15 NWLR (1110) 418. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
PROPHETESS OLUWANIYI Appellant(s)
AND
CHIEF OLUFEMI ADEWUMI & ORS Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the leading Judgment): The appeal emanated from the ruling of the High court of Justice of Oyo State, in the Ibadan Judicial Division, in Suit No.1/694/2002, granting the 1st respondent an interim order of injunction against the appellant for alleged nuisance, pending the determination of the motion on notice for interlocutory injunction.
In the motion for interlocutory injunction before the court below, the 1st respondent prayed for:
“An order of interlocutory injunction restraining the defendant and all the members of Christ Mercy Church of Plot 29, G.R.A, Iyaganku, Ibadan by themselves, their agents, privies or whosoever from further engaging in activities such as clapping, shouting singing and drumming through loud speakers or in any other form or other activities that may constitute nuisance to the annoyance and inconvenience of the plaintiff in the premises of the property of the YMCA and in Plot 29 both in Block XII of New G.R.A. Iyaganku, Ibadan between the hours of 7.00pm. and a.m pending the final determination of this action.”
The above motion for interlocutory injunction was filed on 2.8.2002. From the compiled record of appeal, the court below first sat on 31.10,02. The application could not be heard on 31.10.02, on account of the absence of the appellant’s learned counsel. By agreement between counsel who held the brief of the appellant’s learned counsel, and respondents’ respective learned counsel all pending motions were adjourned to be heard on 9.12.02,
On 9.12.2002, the court sat. The appellant’s learned counsel and his client were absent. No explanation was given for their absence. The notice of preliminary objection of the appellant was struck out upon oral application by the 1st respondent’s learned counsel. The motion for interlocutory injunction was, however, adjourned for hearing on 13.12.02.
All the learned counsel was in court on 13.12.02. The 1st respondent’s learned counsel intimated the court below that he would move the pending motion for interlocutory injunction. The appellant’s learned counsel offered, instead, an undertaking covering the use of loud speakers by this client only. He was not prepared to extend the undertaking to the other items of the alleged nuisance.
The 1st respondent’s learned counsel then applied orally:
“That an interim order of injunction be made since the 1st defendant’s Applicant’s counsel is not prepared to give an undertaking.”
The compiled record of appeal does not indicate the reaction of the appellant’s learned counsel to the oral application. Counsel for the 2nd – 3rd defendants in the court below, Mr. I. O. Tijani, a legal officer, on his own part, urged that justice be done to the two sides.
The court below recounted the set-back encountered by the application for interlocutory injunction and ruled as follows:
“I am of the opinion that it will meet the cause of justice if, the 1st defendant is restrained in the interim from engaging in activities such as clapping, shouting, singing and drumming through loud speakers or in any other form or other activities that may constitute nuisance to the annoyance and inconvenience of the plaintiff in the premises of the property of the YMCA and in Plot 29 both in Block XII of New G.R.A, Iyaganku, Ibadan between the hours of 7.00a.m pending the hearing and determination of the application on Notice for Interlocutory Injunction which is hereby fixed by agreement of counsel to 10th of January, 2003 for argument. I hereby so order.”
It is against that ruling that the appellant filed a notice of appeal with two grounds of appeal.
The single issue for determination distilled by the appellant from the two grounds of appeal is:
“Whether the order of interim injunction made by the lower court upon oral application of the 1st Respondent’s counsel was properly made against the background of the explanations and protest of the Appellant’s counsel and the settled Principles governing the grant of interim order(s) of injunction.”
It was submitted on behalf of the appellant that the court below was wrong in granting the interim injunction order upon an oral application in disregard of the explanations and protest by the appellant’s learned counsel and in framing the interim order to reflect with slight variation the exact prayer sought in the motion for interlocutory injunction; that no extreme or real urgency was disclosed by the 1st respondent to warrant the granting of the interim order by the court below which contravened the cases of 7up Bottling Co. Ltd. V. Abiola and Sons Ltd.(1995)3 NWLR (Pt.383) 257 at 276, Sabru (Nig) Ltd. V. Jezco (Nig) Ltd. (2001) 2 NWLR (Pt.697) 364 at 379 – 380, Kotoye V. CBN (1989) 1 NWLR (Pt.98) 419, Itama V. Osaro – Lai (2000) 6 NWLR (pt.661) 515 at 521; that the court below did not consider the interest of the appellant before issuing the interim restraint against her contrary to the decisions in the cases of Odutola V. Lawal (2002) 1 NWLR (Pt.749) 633 at 668, Ilori V. Benson (2000) 9 NWLR (Pt.673) 570, and Kotoye (supra).
It was submitted that the res of the substantive suit is noise, sounding in the tort of nuisance, an intangible thing, which had been going on for some years as averred in the statement of claim and the affidavit accompanying the motion for interlocutory injunction, without showing any irreparable damage to the 1st respondent, consequently the interim order of injunction was wrongly issued by the court below, and the appeal be allowed vide the cases of Fawehinmi v. Akilu (1994) 6 NWLR (Pt.351) 387 at 467 – 468, Jack V. Whyte (2001) 6 NWLR (Pt. 709) 266 at 283, Adimora V. Ajufo (1988) 3 NWLR (Pt.80) 1 at 16, Atolagbe V. Shorun (1985) 1 NWLR (Pt.2) 360 at 375, Abisi V. Ekwealor (1993) 6 NWLR (Pt.302) 643 and NDIC V, SBN Plc (2003) 1 NWLR (Pt.801) 311 at 376.
The 1st respondent formulated his own issue for determination as follows:
“Whether the learned trial Judge properly exercised his discretion and arrived at a correct decision in making the order of interim injunction against the appellant given the facts and circumstances of this case?”
The 1st respondent’s brief of argument prefaced on the interminable dispute between the appellant and the 1st respondent over the right to quiet enjoyment of the latter’s residential premises neighboring the appellant’s site of religious worship. An earlier suit on nuisance between them was copiously referred to by the 1st respondent in his brief.
The respondent’s brief took preliminary objection to particulars (i), (ii) and (iii) of ground 1 of the notice of appeal and particular (iii) of ground 2 thereof (supra) under order 6 rules 2 (2), (3), (4) and of the Court of Appeal Rules, 2002, (2007) on the grounds that they are narrative of facts, untrue, unsupported by the compiled record of appeal and are denied by the 1st respondent and should be struck out.
The respondent’s brief contended that the interim order of injunction was issued pending the determination of the motion for interlocutory injunction and, was based on real urgency arising from the multiple applications challenging the jurisdiction of the court below, which were used by the appellant to stall the hearing of the motion for interlocutory injunction that the court below had materials in the 1st respondent’s uncontroverted affidavit supporting the motion for interlocutory injunction showing the appellant had ceaselessly committed the nuisance since 1999, without the intention of abating it herself, therefore following Kotoye (supra) it exercised its discretion properly in granting the interim order of injunction, which should not be over turned by this court.
The appellant’s reply brief urged that the copious reference made in the 1st respondent’s brief to another suit concerning the same parties should be ignored as that suit has no bearing on the appeal, all the more so the suit had aborted on a preliminary objection against the 1st respondent, which is irrelevant to the present appeal and should not have been included in the 1st respondent’s brief of argument vide Anuka Community Bank (Nig) Ltd. and Others v. Felix Olua (2000) 12 NWLR (Pt.682) 641 at 660 and Data processing Maintenance and Services Ltd. V. Larmie (2000) 5 NWLR (Pt. 655) 138 at 151.
The appellant’s reply brief contended further that the particulars of the grounds of appeal support or relate to and complement the complaints upon which the two grounds of appeal are predicated, without offending order 6 Rules 2 (2), (3) and (4) of the court of Appeal Rules (supra) and should not be struck out vide Anamm co. V. First Marina Trust Ltd. (2000) 1 NWLR (Pt. 640) 309 at 317.
It was argued finally that the 1st respondent did not furnish materials in the court below to satisfy the requirements of irreparable damage of the status quo and real urgency laid in Kotoye (supra) for the grant of an interim injunction in his favour, therefore the court below should have refused his oral application vide Ajewole V. Adetimo (1996) 2 NWLR (Pt.421) 391 at 404 and 7up Bottling Co. Ltd. (supra).
Grounds 1 and 2 of the Notice of Appeal state:
“1. The learned trial judge erred in law when he granted the plaintiff/respondent an order of interim injunction against the 1st defendant/appellant upon oral application despite the plea and protest of the 1st defendant/appellant’s counsel.
PARTICULARS
i. The Notice of Preliminary Objection earlier filed by the 1st defendant/appellant challenging the jurisdiction of the Court to entertain the entire suit was struck out on 9/12/2002 five days earlier unknown to the appellant’s counsel.
ii. The learned trial judge accepted the explanations of the counsel to the appellant to effect that he was completely unaware that the suit would be coming upon 9/12/2003.
iii. The learned trial judge also accepted the undertaking of the Appellant’s Counsel that he would file another notice of preliminary objection on jurisdiction immediately since it is capable of determining the entire suit once and for all.
iv. The 1st Defendant/Appellant’s Counsel opposed the oral application since the main motion for interlocutory injunction was still pending.
v. The grant of the interim order was irregularly made.
1. The learned trial judge erred in law by granting an interim order of injunction without taking into consideration the principles governing the grant of interim order of injunction.
PARTICULARS
i. There was not element of urgency at all that would have warranted the grant of the order.
ii. The res is intangible and not capable of being destroyed.
iii. The motion inter-parties for interlocutory injunction was still pending and yet to be taken and the counsel on both side have agreed to suspend it pending the disposal of the notice of preliminary objection to be re-filed by the 1st Defendant/Appellant’s Counsel following the striking out of the earlier one on 9/12/02 – five days earlier in the absence of the counsel to the appellant.
iv. The interim order was not grantable in the Prevailing circumstances.”
Particulars (i), (ii) and (iii) of ground 1 and particular (iii) of ground 2 of the Notice of Appeal (supra) rather furnished in detail their import showing in accurate and precise terms the case the 1st respondent is to meet on the appeal. The 1st respondent has not shown that he has been misled or taken by surprise by the said particulars. I am unable to detect any defect in the said particulars of the grounds of appeal to attract the intervention of order 6 rules 2 (2), (3), (4) of the Court of Appeal Rules (supra). The objection against them is devoid of merit and is hereby overruled.
The appellant’s issue for determination is more robust and encompassing than the narrow issue for determination presented by the 1st respondent. The former embraces all the grounds of appeal unlike the latter. I follow the appellant’s issue for determination in this discussion accordingly.
The 1st respondent referred extensively in his brief to events that occurred in another legal tussle he had with the appellant, which were not made part of his case in the court below in respect of the present controversy. I endorse the appellant’s objection to the introduction of extraneous events into the appeal by the 1st respondent. The said irrelevant or extraneous events are hereby jettisoned.
The oral application for interim injunction order was made by the 1st respondent’s learned counsel in the presence of the appellant’s learned counsel. He did not object to the mode of the application. I take it that he consented to the irregularity in procedure and cannot now be heard to complain against it on appeal. See Osigwe V. Ps PLS Management Consortium Ltd. and Others (2009) 1 S.C.N.J. Page 1 at Page 18 per Musdapher, J.S.C., thus:
“The mere fact that there was no formal application in writing did not render the decision wrong. Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity. See Saude V. Abdullahi (1989) 4 NWLR (Pt.116) 388.”
See also Ayanwale and Others V. Atanda and Another (1988) 1 S.C.N.J. Page 12.
The key issues to ascertain from the compiled record of appeal are whether real urgency and irreparable damage were shown in the oral application to sustain the grant of the order of interim injunction by the court below. The appellant’s learned counsel argued that the alleged nuisance by noise had been with the parties for a long time, therefore there was no real urgency in the matter to redress by interim restraint. The 1st respondent’s learned counsel argued, on the other hand, that the alleged nuisance by noise had not abated and was still raging on, so there was real urgency for an order of interim injunction.
At the time of filing the substantive suit and the motion for interlocutory injunction on 5.8.2002, up to 13.12.2002, when the 1st respondent’s learned counsel orally requested for an order of interim injunction, the status quo before the initiation of the suit – alleged noisy religious worship by the appellant allegedly disturbing the quiet enjoyment of the 1st respondent’s neighboring residential premises – had not changed. Nothing had added to it. It remained the same. The 1st respondent did not furnish new materials or facts to the court below in his oral application to the contrary.
Based on the above premise, the burden was on the 1st respondent to satisfy the court below by cogent facts that the said status quo had started altering for the worse or was deteriorating in alarming proportion that impending injury from it created a state of emergency requiring very urgent intervention by the court below to arrest the dangerous trend of events by an interim order of injunction in favour of the 1st respondent.
No such materials or facts showing extreme urgency and prima facie irreparable damage were brought by the 1st respondent to the attention of the court below in the oral application for interim injunction. All that the 1st respondent’s learned counsel was credited to have said was:
“Dr. Ajibade applies that an interim order of injunction be made since the 1st defendant’s Applicant’s counsel is not prepared to give an undertaking.”
Then the court below ruled and obliged him with the order of interim injunction, when the granting of such a delicate or risky order is not automatic or routine or as a matter of course. It must be based on proven prima facie facts of real urgency and imminent irreparable damage to the res or subject-matter of dispute before it may be granted. The 1st respondent did not satisfy the above two requirements. In short he satisfied none of the requirements.
The grant of the interim order of injunction by the court below was, accordingly, based on no materials to back up the interim order sought by the 1st respondent: nothing of emergency threatening the irreparable damage of the status quo maintained by the substantive suit and the motion for interlocutory injunction was established by the 1st respondent to warrant the grant of the interim order of injunction by the court below.
I agree with Mr. Alabi for the appellant that the 1st respondent did not make a case for the grant of an order of interim injunction and the court below was wrong to issue an order of interim injunction in his favour – see the apt English case of Beese and Others V. Woodhouse and Others (1970) 1 All E.R. 769, where the two conditions – real urgency and irreparable damage – were met by the applicants in the materials furnished in their oral application for an interim injunction to stop nuisance by noise arising from the test running of motor-vehicles by the respondents close to where the applicants were running a school; which was not the case here.
Davies, L. J., held inter-alia at pages 771 and 772 of the law report:
“If on prima facie view of the case the judge comes to the conclusion that irreparable damage may be done to the plaintiff by not preventing the continuance of the alleged nuisance or whatever other wrong, it may be by the defendant, plainly, in my view, the judge has jurisdiction to grant an ex parte injunction in such circumstances…” (Underlining supplied).
Sachs, L. J., added at pages 773 of the report:
“It is a question, in each case of the type it mentions, as in all other cases where an interim or interlocutory injunction is sought, for the court to consider what, on the balance of convenience, is the right order, and where lies the major risk of damage, and in particular of any irreparable damage.” (Underlining supplied).
See also Kotoye (supra), 7up Bottling Co. Ltd. (supra), Itama (supra) and the host of other cited cases (supra) on the point by the appellant’s learned counsel re-echoing the principles of law on the issue already laid in Kotoye (supra), to the effect that real urgency and irreparable damage must be established by the applicant before an order of interim injunction may issue in his favour.
I venture to opine that if the court below had been decisive or in firm control of the proceedings, the application for interlocutory injunction could have been heard with dispatch, as is deserving of such applications, in the early part of the proceedings and, the compromised condition it found itself to make an off-hand order of interim injunction solely to satisfy the 1st respondent to the interim detriment of the appellant might have been averted.
The appeal has merit, it succeeds. I hereby allow it and set aside or vacate the order of interim injunction granted to the 1st respondent against the appellant by the court below. It is, also, ordered that the substantive suit together with the motion for interlocutory injunction be heard before another learned judge of the Oyo State High Court. The 1st respondent shall pay N30,000 costs to the appellant.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother, Ikyegh, JCA just delivered. I agree that there is merit in this appeal and that it should be allowed.
The main feature that distinguishes an order of interim injunction from an order of interlocutory injunction is that an order of interim injunction is made to preserve the status quo until a named date or until further order, or until a motion on notice for interlocutory injunction can be heard. It is to be made in cases of real urgency where it is shown that an irretrievable mischief or damage may be occasioned before the application on notice can be heard or in a case where hearing has commenced, before the conclusion of the hearing, See: Kotoye V. C.B.N and CRS (1989) 1 N.S.C.C. (Vol. 20) 238 at 251 lines 38-53; (1989) 1 NWLR (98) 419: Obeya Memorial Specialist Hospital V. A.G. Federation (1987) 3 NWLR (60) 325.
There must be a situation of real urgency and the court must consider the balance of convenience between the parties. It is certainly not granted as a matter of course or routine. See also: U.T.B. Ltd V. Dolmetsch Pharmacy (Nig.) Ltd. (2007) 16 NWLR (1061) 520 at 545-546 G-H,
In the instant case the 1st respondent had a pending motion on notice before the lower court seeking:
“An order of interlocutory injunction restraining the defendant and all the members of Christ Mercy Church of Plot 29, GRA. Iyaganku, Ibadan by themselves, their agents, privies or whosoever from further engaging in activities such as clapping, shouting, singing and drumming through loudspeakers or in any form or other activities that may constitute nuisance to the annoyance and inconvenience of the plaintiff in the premises of the property of the YMCA and in Plot 29 both in Block XII of New GRA. Iyaganku, Ibadan between the hours of 7.00 p.m and a.m. pending the final determination of this action.”
On 13/12/2002 the motion on notice for interlocutory injunction, which had been pending since August 2002 could not be taken on the ground of ill health of learned counsel for the 1st defendant (now appellant) (see page 35 lines 7 and 8 of the record). The said learned counsel offered to give an undertaking on behalf of his client not, to use loud speakers but refused to give an undertaking that night vigils would not be held pending the hearing and determination of the motion on notice. It was for this reason that learned counsel for the plaintiff (1st respondent) herein requested that an interim order be granted to maintain the status quo pending the hearing of the substantive application.
However, no reason was given as to the urgency of the situation that warranted the grant of an interim order. From the processes already before the court – the writ of summons and statement of claim (pages 1-8 of the record) and the pending application for interlocutory injunction (pages 9-268 of the record), it was clear that the nuisance being complained of had been going on since 1999.
In his oral application before the court no new, urgent or compelling facts were brought to the attention of the court to justify the grant of an interim order of injunction.
Learned counsel for the plaintiff asked for the order as a matter of course and the learned trial judge fell into the error of granting it merely for the asking, thereby pre-empting the pending substantive motion in notice.
I am of the view and do hold that this is a clear case of an arbitrary exercise of discretion by the learned trial judge. This court therefore has a duty to interfere with the decision. See: R. Benkay (Nig). Ltd v. Cadbury (Nig) Plc (2006) 6 NWLR (976) 338 at 367 D-E; Ogolo V. Ogolo (2006) 5 NWLR (972) 163 at 180 G-H; Oyekanmi V. NEPA (2000) 15 NWLR (690) 414 at 438, Ejorkele v. Nwafor & Ors (2005)15 NWLR (1110) 418.
For these and the more detailed reasons ably advanced in the lead judgment. I also allow the appeal. I abide by the consequential order made therein including the order for costs.
SIDI DAUDA BAGE, J.C.A.: I was privileged to read in advance the lead judgment delivered by my learned brother, J.S. IKYEGH, J.C.A. I agree with his reasoning and conclusions. The appeal is meritorious and is also allowed by me.
I entirely, agree with the lead judgment. I also abide with the orders made therein.
Appearances
Mr. I. L. AlabiFor Appellant
AND
Dr. B. A. M. AjibadeFor Respondent
