STANDARD CHARTERED BANK NIGERIA LIMITED V. DR. TUNJI BRAITHWAITE
(2013)LCN/6254(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2013
CA/L/1192/2010
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
STANDARD CHARTERED BANK NIGERIA LIMITED Appellant(s)
AND
DR. TUNJI BRAITHWAITE Respondent(s)
RATIO
WHETHER OR NOT EQUITABLE RELIEFS ARE GRANTED AT THE DISCRETION OF THE JUDGE
As such, they were caught by the well-known canon that the award of equitable remedies is, entirely, at the discretion of the court, which discretion must be exercised judiciously and judicially and in accordance with settled rules and principles, Gaje and Ors v. Paye (2003) LPELR-SC.40/99, at page 23 D-F; Spry, Equitable Remedies (4th edition) 430; M. I. Jegede, Principles of Equity (Lagos: MIJ professional publishers, 2001) 75 et seq; N. Tobi, The Law of Interim Injunction in Nigeria (Ibadan: St Paul’s Publishing House, 2006) passim; A. Babalola, Injunctions and Enforcement of Orders (Ibadan: Intec Ltd, 2007) passim.
This somewhat inflexible rule finds anchorage in the very nature of judicial discretion, which is the court’s epistemological tool for winnowing solid truth from windy falsehood; for dichotomizing between shadow and substance and distilling equity from colourable glosses and pretences. By its very character, judicial discretion does not brook any capricious exercise of power according to private fancies and affections. We find support for this opinion in Rook’s case (1598) 5 Co. Rep. 996, cited in Ayantuyi v. Governor of Ondo (2005) 14 W R N 67, 91. PER NWEZE, J.C.A.
DIFFERENCE BETWEEN AN INTERIM AND INTERLOCUTORY INJUNCTION
This line of argument is completely out of tune with the law because there is a difference between Interim and Interlocutory Injunction – see Kotoye V. CBN & Ors. (1989) 1 NWLR (Pt. 98) 419 SC, where Karibi-Whyte, JSC, explained – “It is useful to examine the meaning and scope of the words “interlocutory” and “interim, which have been used very freely and often times regarded as interchangeable in applications for injunctions … An interlocutory application is an application, which can be made in the course of a proceeding, and at any stage of a cause or matter, for the purpose of keeping the parties in status quo till the determination of the action … The word “interim” used also in applications ad orders of injunction for maintaining the status quo of parties to a suit means “temporary” “in the meantime”. However, an injunction described as interim falls within the above definition and is an interlocutory injunction because it is an application made in the course of the proceedings. But unlike an interlocutory injunction properly so-called, an interim injunction is NOT one granted till the determination of the suit. It is an injunction made until a named date or until further order or until an application on notice can be heard. Thus, they bear all the features and trappings of an interlocutory injunction and granted upon the same consideration of equity. Interim orders for injunction can be made pending motion on notice of an interlocutory injunction where applicant is able to show that irretrievable damage may be done before the completion of the hearing of the Application – -. An interim injunction is intended to be temporary in its character and any person at whose suit such an injunction is obtained, is under an obligation to limit, as far as possible, the time during which it is operative – -. In such a case, the Court makes an order to preserve the status quo until the application for interlocutory injunction can be heard and determined”. PER AUGIE, J.C.A.
CHIMA CENTUS NWEZE J.C.A. (Delivering the Leading Judgment): At the High Court of Lagos State, the respondent in this appeal, [as Claimant], took out a Writ of Summons accompanied by a Statement of Claim, both dated October 4, 2010, in which he sought, inter alia, declaratory and injunctive reliefs against the appellants (as defendants). On the same day, he beseeched the court (hereinafter referred to as the lower court) with an application for:
An order of interlocutory injunction, restraining the defendant quia timet, from doing whether by himself (sic) or by his (sic) agents or servants or otherwise howsoever, from commencing with the construction of the proposed 14 storey building and 5 level car park on the premises known and situate at No 142 Ahmadu Bello Way, Victoria Island, Lagos, and also known as Plot 141 Elias Close, Victoria Island, Lagos, pending the determination of the suit.
Like Oliver Twist in Charles Dickens’ favourite novel, the following day, October 5, 2010, the respondent, [as Claimant/applicant], importuned the lower court, through an ex parte application, for an:
An order of interlocutory injunction, restraining the defendant quia timet, from doing whether by himself (sic) or by his (sic) agents or servants or otherwise howsoever, from commencing with the construction of the proposed 14 storey building and 5 level car park on the premises known and situate, at No 142 Ahmadu Bello Way, Victoria Island, Lagos, and also known as Plot 141 Elias Close, Victoria Island, Lagos, pending the determination of the Motion on Notice filed in this suit.
Expectedly, the applications prompted the filing of a plethora of processes: counter-affidavit; further affidavit; documentary exhibits and written addresses. Not done yet, on October 9, 2010, the respondent, [as applicant], further, implored the lower court to visit the locus in quo. On November 2, 2010, Counsel canvassed arguments for and against the application of October 4 for interlocutory injunction. In its ruling of November 24, 2010, the court, (coram Olateru-Olagbegi, J.) decreed, inter alia, that an:
Order of preservation of status quo be and is hereby made to the effect that all civil engineering and building works in respect of the project proposed by the respondent at 142, Ahmadu Bello Way, Victoria Island, Lagos, shall cease forthwith until the next date of adjournment.
This appeal is the defendant/respondent’s expression of dissatisfaction against the said ruling. Two issues were submitted for the determination of the appeal.
They were framed thus:
(1) Whether the lower court had the jurisdiction or exercised such jurisdiction correctly when it made the preservative order complained of, having refused to grant the respondent’s application for interlocutory injunction?
(2) Whether the provisions of Section 24 of the High Court Law of Lagos State, together with the provisions of Order 38 Rule 2 of the High Court (Civil Procedure) Rules, 2004, clothe the lower court with the jurisdiction/power to enter a preservative order upon the refusal of an application for interlocutory injunction made to it?
ARGUMENTS ON THE ISSUES
Issue 1
(i) Whether the lower court had the jurisdiction or exercised such jurisdiction correctly when it made the preservative order complained of, having refused to grant the respondent’s application for interlocutory injunction?
When this appeal came up for hearing on April 9, 2013, counsel for the appellant, A. A. Adegbonnire, appearing with O. Iyayi and O. Falaye, adopted the appellant’s brief of argument filed on January 21, 2011. In the said brief, Counsel drew the courts attention to what he called “salient points/facts”. He litanised them thus:
(a) The property situate and lying at No. 142, Ahmadu Bello Way Victoria Island, Lagos, is the property of the appellant: a common fact between the parties to this appeal and clearly stated by the lower court in its ruling under appeal.
He referred to the ruling at pages 459-467 of the record, particularly, particularly at pages 460-461 of the record and the Counter-Affidavit of Suzanne Oluwole made in opposition to the grant of the respondent’s application for injunctive relief dated October 4, 2011, pages 74-202 of the record.
(b) There is no dispute between the parties herein as to the proprietorship of the property situate, lying and known as No. 142, Ahmadu Bello Way, Victoria Island, Lagos.
(c) The appellant’s application dated October 4, 2010, the subject of the lower Court’s ruling now under appeal, was for the grant of an interlocutory injunction pending the hearing and determination of the substantive suit, pages 203 – 253 of the record.
(d) The respondent did also seek an interim order vide an ex-parte application dated 5th day of October, 2010 which was not granted by the lower court, pages 396 and 455 of the record.
(e) The lower court in its ruling now under appeal, particularly at pages 462-464, did find that having regard to the contents of the affidavit presented to it by the parties herein, it was not possible to resolve the conflict of facts/issues between the parties herein without delving into the merits of the substantive suit, and that the proper approach was to “stop hearing the application and accelerate the trial of the substantive”.
(f) There is no cross-appeal filed by the respondent in this appeal, neither has he filed a respondent’s Notice to affirm the decision of the lower court on other grounds.
He hinted that all of these points would be referred to in subsequent parts of the brief to show that the issue now under consideration is one which ought to be resolved in favour of the appellant. In his view, it is beyond doubt, from a reading of the ruling of the lower court now under appeal, that the said court found that the case presented to it by the parties herein with regard to the grant of an interlocutory injunction pending the hearing and determination of the substantive suit, was one which called for the refusal of such an application, and in its stead, grant an order for accelerated hearing. He referred to the lower court’s ruling, pages 462 – 464 of the record.
Counsel pointed out that the lower court found that it was inappropriate having regard to the facts of the case before it, the contents of the affidavits exchanged by the parties herein and the decision it relied upon in its own ruling, to proceed to grant the respondent’s application of October 4, 2010. The court was of the view that the proper order to make was one acceleration the hearing of the substantive suit.
He observed that what prompted this appeal was that despite the finding of the lower court that it was inappropriate to grant the respondent’s application for injunctive relief dated October 4, 2010, it proceeded to grant a preservative order in the nature of an interim injunction. The court made an interim order after it had taken arguments from the parties herein; had reached a decision that in the circumstances of the case, an injunction ought not to be granted.
He submitted that the grant of a preservative order in the nature of an interim order as was done by the lower court in the circumstances, was manifestly wrong and made without jurisdiction, having regard to laid down principles of law which the lower court itself recognized and admitted. These principles of law made the grant of an injunction inappropriate in the circumstances of the case.
He noted that the clear distinction between an interim and interlocutory injunction must be stated and recognized. In his view, this distinction which the lower court, clearly, did not consider, led it to granting an interim order after having heard parties in respect of the respondent’s application for interlocutory injunction dated October 4, 2010, citing 7-UP Bottling Company Limited and Ors v. Abiola and Sons Nigeria Limited [1995] 3 NWLR (pt 383) 257, 276 – 277.
He observed that it was clear, from a reading of the above decision, that the law recognizes that any order of injunction granted not pending the determination of a pending suit, is and must be regarded as an interim order of injunction. He maintained that the law clearly does not contemplate that a court which has heard arguments in respect of an application for the grant of an interlocutory injunction, would in its ruling in respect thereof, proceed to refuse the interlocutory injunction stating that it was not proper case to grant one, but proceed to enter a preservative order in the nature of an interim order as the Court below did.
He took the view that there was no doubt that the lower court held that an order of interlocutory injunction, as prayed for by the respondent in its application for interlocutory injunction dated October 4, 2010, was one which it must not make, having regard to the facts presented to it by the appellant and the respondent. The court held that the proper order to make would be one accelerating the trial of the substantive suit.
He maintained that the grant of the said preservative order was more worrisome because no appellate court decisions regarding the grant or refusal of an order of interlocutory injunction, ever contemplated or stated that a court could, having found, as the court below did, that the entering of an order of interlocutory injunction was inappropriate in the circumstances of the case before it, order accelerated hearing but still proceed to make an interim order of injunction as the lower court did. He noted that the grant of an interim order of injunction is one which is done upon extreme urgency being shown by the party seeking such an injunction.
He canvassed the view that the lower court did not form the opinion that the rights of the respondent had to be urgently protected. This, in his contention, was clearly shown and demonstrated by the court’s refusal to entertain the respondent’s application for interim injunction dated October 5, 2010, citing pages 254-365 of the record which contain the respondent’s application for interim injunction. He, also, cited page 306 of the record which contains the directives of the court below. The following endorsement is contained therein:
“Registrar FIX MON DTD 4-10-2010 for 26-10-2010.” (If our reading of this entry is correct, it reads in full “Registrar, fix the motion dated October 4, 2010 for October 26, 2010.”)
He maintained that the lower court, clearly, declined to hear the respondent’s application for interim injunction. In his view, this fact was significant in that the only situation envisaged by law, where a court faced with an application for interlocutory injunction may make an interim order, was either before the hearing of the application for interlocutory injunction or in the course of the hearing of the application for interlocutory injunction, but before it ruled in respect thereof. This was clearly not the case at the lower court, citing Bank Boston NA USA and Ors v. Adegoroye (2000) 3 NWLR (pt. 644) 215, 225.
Counsel pointed out that, in the instant appeal, the lower court refused to entertain the respondent’s application for the grant of an interim order of injunction as prayed for in the respondent’s application dated October 5, 2010.
The court did not make the preservative order during the course of hearing arguments in respect of the respondent’s application for interlocutory injunction. Rather, the lower court entered an interim order of injunction in its ruling relating to the respondent’s application for interlocutory injunction after having found that it was inappropriate to grant the said application.
He maintained that the approach and ruling of the lower court, now under appeal, was unknown to law. In his view, the said ruling runs contrary to all of the laid down principles of law on the grant or refusal of an application for the grant of an interlocutory injunction. He noted that no binding decision ever sanctioned the view that a court could, after holding that the justice of a case would be best served by accelerating the hearing of a cause, proceed to enter an injunction as the lower court did.
On the contrary, he prayed in aid the authority of Duwin Pharmaceutical Chemical Company Ltd v. Beneks Pharmaceutical and Cosmetic Limited and Ors [2008] 4 NWLR (pt. 1077) 376, 401-413 for the view that once a court finds that the interests of justice would be best served by accelerating the hearing of the substantive suit rather than dissipating its energy in hearing an application for the grant of an injunction, it must immediately stop the hearing of the application for injunction and proceed to accelerate the hearing of the substantive suit.
He drew attention to the ruling of the lower court at Pages 459-467, particularly at pages 463 where it held thus:
It is in the view of this court not possible to resolve these issues without delving into the merits of the case. These particular questions can be answered only upon conclusion of trial. The case of Globe Fishing Industries v. Coker (1990) 7 NWLR (pt 162) 265 SC at page 294 para F – G Nnaemeka- Agu stated thus:
For the whole approach to an application for an order of interlocutory injunction should always take into account the clear implication that the court is not to try the issues in contention in the case twice, first while considering the application for interlocutory injunction and second during the trial. Once the court is faced with a situation where it may have to do that in order to give due consideration to the application, the correct thing to do is to stop hearing the application and accelerate the trial of the substantive suit…
He canvassed the view that the lower court did not exercise its discretion judicially and judiciously. Worse still, it was not in tandem with Globe Fishing Industries Ltd and Ors v. Coker (1990) 7 NWLR (pt 162) 265, 294 which it relied on.
He observed that in the said case Nnaemeka-Agu JSC, clearly, stated that once a Court found, as the lower court did, that to properly determine an application for interlocutory injunction, it would to delve into the issues for trial, it must “stop hearing the application and accelerate the trial of the substantive suit”.
He submitted that the words “hearing the application” used in Globe Fishing Industries Ltd and ors v. Coker (supra), did not envisage or permit the grant of any form of injunction in such circumstances. In his view, the Supreme Court did not envisage that an injunction would be granted in respect of an application where hearing had been stopped.
He referred to page 463 of the record. There, the lower court found that: “it is the view of this court not possible to resolve these issues without delving into the merits of the case. These particular questions can be answered only upon conclusion of trial.” He explained that since this was not challenged, it was binding on the parties. Parties are, therefore, not permitted the indulgence of proffering any arguments which seek to disturb the said finding, Otuedon and Anor v. Olugbor and Ors (1997) 9 NWLR (pt. 521) 355, 384; Abubakar v. Bebeji Oil And Allied Products Limited and Ors [2007] 18 NWLR (pt. 1066) 319, 381 citing Sections 150 and 151 of the Evidence Act (then applicable) and Iga and Ors v. Amakiri and Ors (1976) 11 SC 1, 12-13; African Continental Bank Plc v. Nwobisike (1995) 8 NWLR (pt. 416) 725, 742; Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Kasa v. State (1994) 5 NWLR (pt. 344) 269, 289; Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) 417; Awote v. Owodunni (1986) 5 NWLR (pt. 46) 941, 946.
He observed that this court, in determining this appeal, must therefore proceed from the premise that the lower court had, by itself, found that it would not be just, fair and judicious to grant the respondent’s application for interlocutory injunction. Above all, the court, further, found that its jurisdiction and discretion could only be judicially and judiciously exercised by refusing the injunction and granting an accelerating hearing of the substantive suit.
He submitted that, being the premises upon which this appeal could be determined fairly, the only question which this court would consider is: whether the lower court was right, having regard to the state of Nigerian law in this respect, to have proceed after such a finding to enter an interim injunction? He returned a negative answer. He contended that the lower court, by entering the interim order appealed against, went against several judicial authorities relating to the issue now presented to this court for determination.
He took the view that the said order of interim injunction, clearly, did not flow from its said finding, and ought to be set aside by this court. He maintained that a court was not permitted to enter an order of injunction after it had held that the issues presented to it for adjudication at an interlocutory stage were better resolved at trial.
He, further, submitted that, having held that the issues were best determined at trial, the lower court had, by its own very word, admitted that it gave no consideration to or made no determination as to the entitlement of the respondent to the grant of the interlocutory injunction he prayed for, neither did it consider the principles/conditions which must be addressed/determined by a court before granting or refusing to grant an application for an order of injunction. He maintained that the lower court gave no reason or valid/legal reason in its entire ruling which informed its decision to grant an interim order of injunction after arguments had been taken upon an application for interlocutory injunction.
He submitted that this was clearly a case where the lower court’s exercise of jurisdiction and discretion must be disturbed by this court. He gave reasons: the lower court acted on an, entirely, wrong principle. It, also, failed to take cognizance of its own very finding that the application before it could not be fairly and justly determined without delving into the facts/issues best resolved at trial. Above all, the court violated the principles of fair hearing as enshrined in the 1999 constitution of the Federal Republic of Nigeria, in that it gave an order in respect of which it neither gave a valid/legal reason, nor placed reliance on any facts. He cited Alsthom S.A. and Anor v. Saraki [2005] 3 NWLR (pt. 911) 208, 224 – 225 as authority for the view that where a court exercised its discretion on an entirely wrong principle, or failed to take all the circumstances of a case into consideration, the appellate court must interfere with the exercise of discretion by the lower Court.
He noted that, from the ruling of the lower court, it did not consider any conditions which a party seeking an order for interlocutory injunction must meet and/or satisfy before such an injunctive order would be granted. He contended that, above all, the court acted upon a misconception of law. In his view, it is in the interest of justice to set-aside the said interim order of injunction. He cited M and B Electrical Company Ltd v. The Government of Cross Rivers State and Anor (2005) 6 NWLR (pt. 922) 471, 490. He contended that, on the above authority, the appellate court must interfere with the lower court’s exercise of discretion.
He explained that, in the instant appeal, the appellant has shown that there is no principle of law which permits a court to grant an interim order of injunction after taking arguments in respect of an application for an interlocutory injunction and in the course of delivering its ruling in respect of the said application. He noted that the court, in fact, made an order for accelerated hearing, page 467 of the record. He maintained that the appellant has also shown that it is in interest of justice for the order appealed against to be set-aside for the simple reason that the lower court, by its own very admission, gave no consideration to the facts presented to it by both parties in order to determine whether or not the respondent had made a case out, entitling him to the grant of an interlocutory injunction. The court, in fact, found that to do so would lead to determining issues which are best determined at trial.
He canvassed the view that a ruling, such as the one, the subject of the instant appeal, which gave no reason for finding in favour of a party sought an order of interlocutory injunction, but admitted that it could not do so without delving into matters/issues best determined at trial, could not be said to have been given in the interest of justice.
He explained that this appeal was not an appeal which challenged the lower court’s consideration of the principles relating to or conditions which must be met before a party was granted an injunction. That would be impossible by reason of the fact that the lower court in its ruling admitted that it did not give consideration to these principles and/or conditions. On the contrary, the appeal challenges the decision of the lower court for granting an interim order of injunction during the course of delivering its ruling in respect of an application for injunction and after having held that it could not determine the respondent’s application for the grant of an interlocutory injunction without delving into issues determined at trial. He urged the court to resolve the first issue for determination in favour of the appellant and set aside the interim order of injunction entered by the lower court on the 24th day of November, 2010.
ISSUE TWO
Whether the provisions of Section 24 of the High Court Law of Lagos State, together with the provisions of Order 38 Rule 2 of the High Court (Civil procedure) Rules, 2004, clothe the lower court with the jurisdiction/power to enter a preservative order upon the refusal of an application for interlocutory injunction made to it?
On this issue, counsel observed that, in making the order of interim injunction now under appeal, the lower court relied upon the provisions of Order 38 Rule 2 of the High Court of Lagos State [Civil Procedure] Rules, 2004 (the Rules) and Section 24 of the High Court Law of Lagos State, Cap H3, Laws of Lagos State of Nigeria, 2003 [the Law].
He contended that, in employing or relying upon the provisions of Order 38 Rule 2 of the Rules and Section 24 of the Law, the lower court failed to give due consideration to the provisions of both enactments. In his view, if it had done so, it would have been manifest to it that the powers so conferred upon the court by these two enactments do not clothe it with the authority or jurisdiction to make orders not contemplated by the rules and law as it did on November 24, 2010.
He explained that the provisions of Order 38 Rule 2 (supra) contemplate that no order of injunction would, in such circumstances, be granted. He referred to what he called “the operative words of the Rule” which provide that: “whenever an application shall be made before trial for an injunction or other order and on the opening of such application, or at any time during the hearing thereof, it shall appear to the judge that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application…”
From this, he extrapolated that –
(a) The rule contemplates that any order which the High Court of Lagos State may make pursuant to the provisions of the said rule is one made at the opening of such application, i.e. upon its attention being drawn to its pendency or at the hearing, i.e. during the arguments of Counsel for and against.
(b) The rule does not permit the High Court of Lagos State to enter an order of injunction after it must have come to the conclusion “that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial”, for the rule itself envisages a situation where the judge before “going into the whole merits on affidavit or other evidence” for the purpose of determining the application for injunction, stops the hearing of the application.
(c) It is clear that any order made pursuant to the provisions of Order 38 Rules, must be one made at “the opening of such application” for injunction or during “its hearing”, and not after hearing and during the course of delivery of the ruling in respect of such application, as the Court below did.
(d) Upon a decision that the issues presented to it are best resolved at trial, the lower court cannot without a resolution of such issues, make an order of interim injunction as the justice of the case does not require such.
He submitted that the provision of Order 38 Rule 2 is, in fact, a codification of the principles applicable in situations where the court forms the opinion, as the court below did, that it could not, fairly and justly, determine an application for interlocutory injunction without delving into the merits of the case. In his view, Globe Fishing Industries Ltd and Ors v. Coker (supra), which captures the situation contemplated by Order 38 Rule 2 of the rules, shows that in such circumstances, the concerned court cannot make an order of injunction as done by the lower court for it envisages that the hearing of such an application would be halted or stopped.
He explained that, in the instant appeal, the hearing of the application was concluded and ruling was adjourned to November 24, 2010. It was in the course of delivering its ruling in respect of the application for injunction and after having held that it could not determine the respondent’s application for injunction, without delving into issues that were best resolved at the trial, that the lower court proceeded to enter an order of injunction contrary to the provisions of Order 38 Rule 2.
According to learned counsel, Order 38 Rule 2 of the Rules does not clothe the lower court with the discretion to make an order of injunction after the hearing of an application for injunction once it determined, as the lower court did, that it could not reach a determination of such an application without delving into the merits of the substantive suit. In his view, the nature of the order envisaged in Order 38 Rule 2 of the Rules was one geared towards the speedy trial of the cause, such as the time within which to exchange pleadings or an order doing away with pre-trial formalities. The justice of such a case cannot warrant the entering of an order of injunction. Such an order would run contrary to the tenets of fair-hearing by reason of the fact that the effect of entering such an order would mean that the lower court was empowered to grant an interlocutory injunction without deciding whether or not the respondents was entitled to the grant of such an order.
He contended that Section 24 (supra) did not empower the lower court to promote reconciliation among parties and encourage arid facilitate amicable settlement by making an order which the law does not contemplate can or should be made in the circumstances of this appeal. The powers to promote, encourage and facilitate amicable settlement is not one that envisages that the lower court would make an order which the law forbids it from making upon the premise that it was trying to promote or encourage amicable settlement.
In his view, any order made by the lower court pursuant to this law must be one which exhibits a judicious and judicial exercise of discretionary power. Such judicious and judicial exercise of discretion must be one which is done in conformity with laid down principles of law relating to the circumstances/facts presented to the court. Such powers cannot be exercised without regard to principles of law as the lower court, apparently, did.
He contended that the grant of the order of injunction, in the circumstances of this appeal, was not contemplated by the provisions of Section 24 of the Law as such exercise ran contrary to laid down principles of law as shown above. He noted that Section 24 (supra) was not a blanket provision which the lower court could employ to make orders which ran contrary to the laid down principles of law as was done by the court below. The said Section 24 did not permit arbitrariness. He urged the court to resolve Issue 2 in favour the appellant.
RESPONDENT’S SUBMISSIONS
As noted earlier, the respondent submitted a sole issue for the determination of this appeal. He framed it thus:
Whether the lower court has the jurisdiction and power to make an Interim preservation order where the order is for limited and stated time frame, and in accordance with order 38 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004.
RESPONDENT’S ARGUMENTS ON THE SOLE ISSUE
Learned counsel for respondent, I. S. Usman, adopted the brief filed on August 26, 2011. In the said brief, he contended that in making the order for the preservation of status quo on the November 24, 2010, the lower court directed parties to meet with a view also an amicable resolution of the issues in the substantive suit. It, also, ordered the parties herein to file processes for accelerated trial of the substantive suit.
He contended that the lower court, by the tenor and nature of its order, made an interim order and, as well, sought to promote reconciliation among the parties, failing which the court would proceed to an accelerated trial of the substantive suit. He submitted that the appellant, in its disregard of the order of court to cease further civil engineering works, merely, underscored the necessity and the imperative of the law that “it shall be lawful for the judge to make an order for such trial accordingly and in the meantime to make such order as the justice of the case may require,” citing Order 38 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004.
He submitted that a court, when faced with an application for Interlocutory Injunction, has the power to order an accelerated trial in lieu of Interlocutory Injunction, and meanwhile make an order of Interim Injunction, citing John Holt Nigeria Limited and Anor v. Holts African Workers Union of Nigeria and Cameroons (1963) 1 ANLR 385; Globe Fishing Industries v. Coker (1990) 7 NWLR (pt. 162) 265; 7 – Up Bottling Company Limited and ors v. Abiola and Sons Nigeria Limited (1995) 3 NWLR (Pt. 383) 257, 277.
He canvassed the view that Section 18 (1), (2) and (3) of the High Court of Lagos State, Cap H3, Laws of Lagos State of Nigeria, 2003, gives the lower court the power to make injunctions in appropriate cases. He cited Order 38 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004, made pursuant to the High Court Law of Lagos State (supra).
He submitted that the lower court, by the virtue of the above Rule, was empowered, both in Law and in Equity, to make an Interim Preservative Order, notwithstanding the order to accelerate the trial of the substantive suit. He contended that the only genuine issue in this appeal was that formulated by the respondent herein. He contended that the attempt by the appellant to introduce extraneous matters into this appeal should be discountenanced.
He, first, observed that nowhere did the lower court, in its ruling dated November 24, 2010, state that it refused the respondent’s application for interlocutory injunction dated October 4, 2010. He maintained that it was a grave error for the appellant to assert that the lower court refused the respondent’s said application. He maintained that the lower court did not refuse to grant the respondent’s ex parte application for interim Injunction as it was the respondent himself who withdrew that application on November 2, 2010, since the appellant was already before the court, page 455 of the record.
He submitted that it was most apt to attempt a definition of an interim order to properly conualize the issue at hand. He referred to The New Lexicon Webster’s Dictionary of the English Language, Deluxe Encyclopedic Edition, (New York: Lexicon Publications, Inc., 1991) 504 which defines the word ‘interim’ thus: “an interval between two actions”; “provisional”, “temporary.” He, equally, cited the Black’s Law Dictionary, 5th Edition, West publishing Co which defines ‘interim order, as follows: “interim: in the meantime, meanwhile, temporary; between,” “interim order: one made in the meantime, and until something is done. He referred to the judicial definition of the term in Att-Gen., Federation v. Fafunwa Onikoyi (2007) All FWLR (pt. 366) 677, 706.
He turned to A.I.C. Ltd v. NNPC (2005) 11 NWLR (pt. 973) 563, 592 where the Supreme Court addressed the issue of what constitutes an order of interim injunction. He submitted that where a court, acting in accordance with the Supreme Court authorities in John Holt Nigeria Limited and Anor v. Holts African Workers Union of Nigeria and Cameroons (supra); Globe Fishing Industries v. Coker (supra), orders accelerated trial of the substantive suit in lieu of an interlocutory injunction, the rules of the lower court, vide Order 38 Rule 2 (supra) make clear provision for an interim order.
He took the view that the use of the phrase ‘and in the meantime’ in the above rule of the lower court accommodated an interim preservative order in the interest of justice. According to him, the clear intention of the rule was to clothe the lower court with the power to protect the res in the substantive suit from being destroyed or frittered away whilst the trial of the substantive action was being accelerated. He submitted that to do otherwise would be to render the trial of the substantive suit an exercise in futility as the res would have been substantially altered before the substantive matter was determined. In his view, such course of action could not be in accordance with the law and runs foul of the dictates of justice. He submitted that the lower court had the jurisdiction and power to make an interim preservative order where it was inclined towards an accelerated trial of the substantive. In his view, that was to protect the res and maintain status quo for the accelerated trial.
He canvassed the view that the appellant in its brief of argument made heavy weather of the purport of the dicta of Nnaemeka Agu, JSC in Globe Fishing Industries v. Coker (supra) 294. He drew attention to the finding of the lower court at pages 462-463 of the record. He explained that, upon reaching the above conclusion, the lower court refrained from making any further consideration of the respondent’s application that would touch on the issues for trial in the substantive matter in line with Nnaemeka Agu, JSC’s position in Globe Fishing Industries v. Coker (supra). He observed that, without first going into the whole merits of the affidavit or other evidence for the purpose of the application, and heeding the wise counsel of the Supreme Court in John Holt Nigeria Limited and Anor v. Holts African Workers Union of Nigeria and Cameroons (supra), the lower court relied on Section 24 of the High Court Law of Lagos State, Cap H3, Laws of Lagos State of Nigeria, 2003 and Order 38 Rule 2 (supra) to order as follows:
a. Meeting of parties to prospect settlement.
b. Order of preservation of status quo
c. A return date for report of settlement and or for further directions on accelerated trial.
He submitted that Globe Fishing Industries v Coker (supra), does not help the argument of the Appellant. On the contrary, the authority Supports and fortifies the lower court’s decision in this appeal. He urged the court to so do.
He submitted that it was the clear and unambiguous provisions of Order 38 rule 2 (supra), made pursuant to the High Court Law of Lagos State that granted the lower court the power and jurisdiction to make an interim preservative order where it ordered accelerated trial of the substantive suit. He pointed out that the lower court, in its ruling relied on Section 24 of the High Court Law of Lagos State (supra) and Order 25 Rule 1(2) (c) of the High Court of Lagos State (Civil Procedure) Rules, 2004, citing page 464 of the record, to order thus:
The applicant and the respondent shall sit down to a meeting with their respective counsel with a view to amicably resolving the disputes between them and or any legitimate ‘concern’ of the applicant in respect of the proposed project of the respondent.
He, further, submitted that the lower court, in its said ruling, made the preservative order directions for taking all necessary steps towards completion of pleadings and identification of issues for determination, based on the combined provisions of Order 27 Rule 1 and Order, 28 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004, citing page 466 of the record.
He submitted that it was the failure of the appellant to recognize these distinctions that led it to formulate issue 2 and the arguments thereon in its brief of argument which, in his submission, are most irrelevant and unnecessary in the determination of the real issue in this appeal. He urged the court to hold that the provisions of Section 24 High Court Law of Lagos State (supra) and Order 38 Rule 2 (supra) contemplate two distinct outcomes (as was rightly done by the lower court) to wit, possibility of an amicable settlement and should that fail, accelerated trial of the substantive suit, but meanwhile an interim order.
He described the appellant’s arguments in paragraphs 4.45 – 4.49 of its brief of argument on Order 38 Rule 2 (supra) as not only misconceived but erroneous. In his view, to adopt that interpretation of Order 38 rule 2 (supra) would be to stand the law on its head. He urged the court to discountenance the argument as it is purely an exercise in semantics.
He contended that upon the consideration of the arguments of counsel, the court could reach a conclusion that the issues in controversy could only properly be resolved during trial and not otherwise. He took the view that the expression “upon the opening of the application’ does not mean that the court would not take arguments of parties before arriving at its decision which would be so stated in its ruling.
He submitted that from the arguments canvassed in this respondent’s brief of argument and the authorities relied upon the sole issue in this appeal ‘that the lower court has the power and jurisdiction to make a preservative order where the order is for a limited and stated time frame and in accordance with Order 38 Rule 2 (supra), has been successfully and overwhelming established by the respondent thus answering the said issue herein in the affirmative. He urged the court to so hold and dismiss the appeal.
APPELLANT’S REPLY
In reaction to the respondent’s sole issue, counsel for the appellant in his reply, pointed out that issues for determination in an appeal must arise from the grounds of appeal as contained in the Notice of Appeal filed by the appellant, Ahmed v. Trade Bank of Nigeria Plc. (1997) 10 NWLR (pt.524) 290, 296, citing Idika v. Esiri (1988) 2 NWLR (pt. 78) 563, 579 – 580; co-operative and commerce Bank (Nig) Plc v. Okpara and Anor (1997) 8 NWLR (pt. 518) 673, 691.
He contended that, by the same token, a respondent cannot in an appeal, formulate an issue for determination which does not arise from the grounds of appeal contained in the Notice of Appeal of the appellant, First Bank of Nigeria Limited and Anor v. Owie (1997) 1 NWLR (pt. 484) 744, 752. He noted that the provisions of Order 6 Rule 4(ii) of the Court of Appeal Rules, 1981 are in pari materia with the provisions of Order 18 Rule 4(2) of the Court of Appeal Rules, 2011.
Still on this point, he referred to Ibator and ors v. Barakuro and ors [2007] 9 NWLR (pt. 1040) 475, 487 where the apex Court dwelt at length on the propriety of raising issues for determination outside the appellant’s grounds of appeal, citing Eliochin (Nigeria) Ltd v. Mbadiwe (1986) 1 NWLR (pt. 14) 47; Ogunma Associated Companies (Nigeria) Ltd v. I.B.W.A. Ltd (1988) 1 NWLR (pt. 73) 658, 681; Nzekwu v. Nzekwe (1989) 2 NWLR (pt. 104) 373, 430.
He observed that, in the instant appeal, the respondent neither cross-appealed nor filed a respondent’s notice. He drew attention to the appellant’s Notice of Appeal, pages 468 – 471 of the record, which contains two grounds of appeal. He contended from a reading of Ground 1, as contained in the appellant’s Notice of Appeal, pages 469 – 470 of the record, it was clear that the appellant did not complain of, or challenge the power of the High Court of Lagos State to make an interim preservative order pursuant to the provisions of Order 38 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004.
He explained that the appellant’s complaint is that having held that the application of the respondent for the grant of an order of Interlocutory injunction was one which could not be made without delving into the merits of the substantive case, and that the proper order to make was one accelerating the trial of the substantive suit as opposed to the grant of an interlocutory injunction, the lower court could not, turn around to make interim order of injunction in the nature of a preservative order. He maintained that the sole issue which the respondent formulated has no bearing whatsoever with the grounds of appeal contained in the Appellant’s Notice of Appeal. He submitted that the respondent was under obligation to formulate issues which arise from the appellant’s grounds of appeal, pages 468 – 471 of the record. In his view, the respondent failed to discharge this obligation.
He contended that the proper order to make in the circumstance is one discountenancing both the issue so formulated and the arguments made in support, Adelusola and ors v. Akinde and ors [2004] 12 NWLR (pt. 887) 295, 311. He urged the court to discountenance not only the said issue but also all of the arguments which the respondent advanced in respect thereof, paragraphs 3.0 to 3.23 of the respondent’s brief of argument, pages 5 – 14.
He explained that, in the instant appeal, the appellant’s Ground two complains that the provisions of Section 24 of the High Court Law of Lagos State and Order 38 Rule 2 of the High Court of Lagos State (Civil Procedure) Rule, 2004, do not clothe the lower court with the power to grant an interim injunction after having refused to grant the respondent his application for interlocutory injunction. He maintained that this complaint of the appellant is clearly different from the question whether or not the lower court had the powers to make a preservative order pursuant to the provisions of the afore-mentioned law and rules of Court.
In his view, the distinguishing factor which the respondent has failed to appreciate or deliberately runs away from admitting, is that in the instant appeal, the lower court had, prior to making the order, the subject-matter of this appeal, held that, in the circumstances of the case before it and the facts presented to it by both parties in relation to the respondent’s application of October 4, 2010, it would not be appropriate in law to grant the respondent’s application for interlocutory injunction, and the appropriate course would be to accelerate the hearing of the substantive suit.
He canvassed the view that Ground two, from which issue two was formulated, did not complain about the power conferred upon the lower court by the provisions of Section 24 of the High Court of Lagos State and Order 38 Rule 2 of the High Court of Lagos State [Civil Procedure] Rules, 2004. On the contrary the complaint is that such powers cannot and do not envisage a situation where the lower Court would decline to enter an interlocutory order of injunction in favor of a party to a cause upon the reason that it would not be just and judicially correct to do so, based upon the facts presented to it by the parties before it, but then proceed thereafter in the same ruling to make an order of injunction.
He noted that the respondent, upon the erroneous belief that issue two, as formulated by the appellant, did not arise from the grounds of appeal, elected not to proffer arguments in respect thereof. He argued that the respondent is deemed to have been conceded to the appellant, Okongwu v. N.N.P.C. [1989] 3 NSCC 118, 125.
In reaction to the respondent’s counsel’s understanding of the import of Order 38 Rule 2 (supra), he debunked the claim that the phrase “and in the meantime” is the operative words of the said Order 38 Rule 2 (supra). In his view, the operative words are “to make such order as the justice of the case may require.” He urged the court to avoid such a construction of the said provision that would lead to absurdity, Kalu v. Odili (1992) 2 NSCC 38 77, citing Minister v. Akpagu (1964) 1 All NLR 208; Ifezue v. Mbadugha (1984) 1 SCNLR 427.
He adduced reasons why the respondent’s interpretation of the said provision would lead to absurdity. According to him:
(a) The Legislature could not have intended that the lower court would still have the powers to grant an injunction after it had concluded, during the hearing of the application that the matter could only be conveniently dealt with by an early trial without first going into the whole merits on affidavit, or other evidence.
(b) In other words, once the court found that the application for injunction could not be judicially and judiciously determined without dabbling into facts which were best dealt with at the trial, it should refrain from granting the injunction.
(c) Clearly, the said provisions never envisaged that the court would determine certain facts which were best dealt with at trial. If that be case, upon what facts would the court then act in order to judicially and judiciously determine the applicant’s application, and proceed to grant an injunction?
(d) Also, the order could not in one breath state that in the circumstances contemplated under the provisions of Order 38 Rule 2, the court should grant an interlocutory injunction, but in another breath permit the court to grant an interim injunction. This would be a clear case of approbation and reprobation.
(e) The respondent’s interpretation means that a court could, having found that an order accelerating the trial of the cause should be made in lieu of the grant of an injunction, still proceed to grant an interim order of injunction and continue to extend the life of such interim order “as the justice of the case may require” even up and until the determination of the substantive suit. That would be absurd, he observed.
(f) The justice of a case connotes an order which can be made having regard to the facts of a case and judicial authorities handed down in relation thereto. There is no judicial authority in which the appellate court, having found that an application for interlocutory injunction could not be granted without delving into the merits of the case, ordered accelerated hearing by such reason but then proceeded to grant an interim injunction.
He posed the question: on what facts did the court base the grant of the interim injunction when it did not reach a determination as to any of the facts presented to it by the parties herein from its own admission? He urged the court to discountenance the respondent’s interpretation of the said provision as that approach would lead to absurdity. He, equally, urged the court to disregard the authorities which the respondent’s counsel cited as they bear no relevance to the appellant’s issue for determination. Above all, the facts of all the said cases are not, in any way, similar to the facts of the present appeal, Clement and Anor v. Iwuanyanwu and Anor [1989] 2 NSCC 241.
RESOLUTION OF THE ISSUES
By their very nature, the two issues which the appellant set out for the determination of its appeal are, inextricably, intertwined. For convenience, we shall deal with both of them together. As counsel for the appellant explained, this appeal is not a challenge to the lower court’s consideration of the principles or conditions for the grant of an injunctive order. The lower court conceded that it did not give any consideration to these principles or conditions. To that extent, we shall not dissipate energy on them for they are well-illustrated in case law, Onyesoh v. Nnebedum and ors (1992) LPELR – SC.276/1989; Saraki v. Kotoye [1990] 4 NWLR (pt 143) 144; Kotoye v. CBN (1989) 1 NWLR (pt 98) 419; Akinpelu v. Adegbore and ors (2008) LPELR-SC.130/2007; Orji v. Zaria Industries Ltd and Anor (1992) LPELR-SC.240/1989; Gov of Imo State v. Anosike (1987) 4 NWLR (Pt. 66) 663; Ezeokafor v. Ezeilo (1999) LPELR-SC.309/1989 etc. Obeya Memorial Hospital v. AG, Federation [1987] 3 NWLR (pt 60) 325; Ojukwu v. Governor of Lagos State (1986) 3 NWLR (pt 36) 39.
In actual fact, this appeal falls within a very compass, namely, the propriety of the decision of the lower court which granted a preservative order of injunction after having held that it could not determine the respondent’s application for the grant of an interlocutory injunction without delving into issues to be determined at trial, pages 462-464. It concluded inter alia that “it is in the view of this court not possible to resolve these issues without delving into the merits of the case. These particular questions can be answered only upon conclusion of trial,” [page 463 of the record].
In our humble view, the key to the resolution of the hermeneutic question posed by the divergent submissions of counsel of the parties in this appeal lies in the decodation of the true juridical character of the relief which the respondent [as applicant] sought from the lower court on October 4, 2010 and the character of the preservative order which eventuated from the court’s said ruling. It would, in our view, be unsafe to proceed with this judgment, without resolving this heady question. To do otherwise would be like embarking on a journey without maps or, in a more homely metaphor, navigating uncharted jurisprudential waters, without navigational aids.
As noted above, the parties ventilated their respective positions. The court adjourned for its ruling. In its said ruling, it made orders in the following terms:
Order of preservation of status quo be and is hereby made to the effect that all civil engineering works in respect of the project proposed by the respondent at 142, Ahmadu Bello Way, Victoria Island, Lagos, shall cease forthwith until the next date of adjournment.
(pages 459- 467 of the record)
In essence, the above relief which the respondent sought in its application of October 4, 2010 and the preservative order of the court made on November 24, 2010, sound in equity. True, indeed, the respondent’s application of October 4, 2010 was a double-barreled application for quia timet injunction and interlocutory injunction rolled up into one application. It was framed thus:
An order of interlocutory injunction, restraining the quia timet, from doing whether by himself or by his agents or servants or otherwise howsoever, from commencing with the construction of the proposed 14 storey building and 5 level car park on the premises known and situate at No 142 Ahmadu Bello Way, Victoria Island, Lagos, and also known as Plot 141 Elias Close, Victoria Island, Lagos, pending the determination of the suit
(Pages 203-239 of the record)
As such, they were caught by the well-known canon that the award of equitable remedies is, entirely, at the discretion of the court, which discretion must be exercised judiciously and judicially and in accordance with settled rules and principles, Gaje and Ors v. Paye (2003) LPELR-SC.40/99, at page 23 D-F; Spry, Equitable Remedies (4th edition) 430; M. I. Jegede, Principles of Equity (Lagos: MIJ professional publishers, 2001) 75 et seq; N. Tobi, The Law of Interim Injunction in Nigeria (Ibadan: St Paul’s Publishing House, 2006) passim; A. Babalola, Injunctions and Enforcement of Orders (Ibadan: Intec Ltd, 2007) passim.
This somewhat inflexible rule finds anchorage in the very nature of judicial discretion, which is the court’s epistemological tool for winnowing solid truth from windy falsehood; for dichotomizing between shadow and substance and distilling equity from colourable glosses and pretences. By its very character, judicial discretion does not brook any capricious exercise of power according to private fancies and affections. We find support for this opinion in Rook’s case (1598) 5 Co. Rep. 996, cited in Ayantuyi v. Governor of Ondo (2005) 14 W R N 67, 91.
In passing, we note that Equity, like an immaculate garment, abhors the company of those who are either likely to contaminate its majesty; taint its purity or dampen its allure! Above all, since she does not trade on detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt and appear with unimpeachable allegations!
Having said that, we think it is necessary to set out the sequence of events that culminated in the preservative order, the cassus belli in this appeal. The respondent [as applicant] beseeched the lower court with an application filed on October 4, 2010, which we had, already, set out above. The lower court heard the arguments of counsel. It reserved its ruling. In its ruling of November 24, 2010, it observed, inter alia, [pages 462-464 of the record] “The addresses of both parties were indeed scholastic thesis (sic) on the subject of interlocutory injunction and nuisance. In the view of this court both addresses went beyond the demands of this application…This court will not go the way of the parties by slipping into the merits of this case as they have done….It is in the view of this court not possible to resolve these issues without delving into the merits of the case…”
It prayed in aid Globe Fishing Industries v. Coker (1990) 7 NWLR (Pt 162) 265, 294 in support of the position that, confronted with a situation where it may be tempted to “try the issues in contention twice, first while considering the application for interlocutory injunction and second during trial…,” that the proper approach would be to stop hearing the application and accelerate the hearing. It, consequently, ordered that the hearing of the matter be accelerated.
It would appear that the lower court misconceived the import of the beneficent reasoning in Globe Fishing Industries v. Coker (supra). As shown above, in the application that culminated to this appeal, the parties had ventilated their agitations for and against the entitlement of the applicant to the relief claimed in the said motion of October 4, 2010 through their addresses. The court adjourned to consider the submissions and, ultimately, resolve the question of the applicant’s entitlement to the said relief. In its ruling, it declined to pronounce on the merits of the application because, as it found, it was “not possible to resolve these issues without delving into the merits of the case,” (pages 462-464 of the record). Consistent with the prescription in Globe Fishing Industries v. Coker (supra), it ordered the accelerated hearing of the matter.
The only aspect of the ruling which the appellant found revolting was the preservative order made subsequent to the order of the accelerated hearing of the case. Naturally, the respondent’s counsel had no grievance against the preservative order. In support of the said order, he made a submission which, with due respect, stood the compelling logic of the reasoning of the apex court on its head. He submitted that when a court is faced with an application for Interlocutory Injunction, it has the power to order an accelerated trial in lieu of Interlocutory Injunction, and meanwhile make an order of Interim Injunction, citing John Holt Nigeria Limited and Anor v. Holts African workers Union of Nigeria and Cameroons (supra) ; Globe Fishing Industries v. Coker (supra); 7 – Up Bottling Company Limited and ors v. Abiola and Sons Nigeria Limited (supra).
With respect, this submission would, no doubt, seem to be a distortion of the rationale of the decision of the apex court. For example, in Kotoye v. CBN (supra), Nnaemeka-Agu JSC made an important clarification on when a court could order an interim injunction. At page 442 of the report, the distinguished jurist (now, of the Blessed Memory), in his characteristic methodical manner, intoned that: Interim injunctions …, while often showing the trammels of the orders of injunctions made ex parte are not necessarily conterminous with them. Their main feature which distinguishes them from interlocutory injunctions is that they are made to preserve the status quo until a named date or until further order or until an application on notice can be heard. They are also for cases of real urgency. But unlike ex parte orders for injunction, they can be made during the hearing of a motion on notice for interlocutory injunction when, because of the length of the hearing, it is shown that an irretrievable mischief or damage may be occasioned before the completion of hearing. Also it can be made to avoid such an irretrievable mischief or damage when due to the pressure of business of the court or through no fault of the applicant it is impossible to hear and determine the application on notice for interlocutory injunction, see, Basse v. Woodhouse (1970) 1 WLR 586 at page 590. It must however be emphasized that what the court does in such a case is not to hear the application for interlocutory injunction ex parte behind of the respondent but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined.
(Italics supplied)
However, that was not what happened in the application leading to this appeal. As noted above, the lower court, actually, heard the application for interlocutory injunction. It adjourned for ruling. It was in the course of the said ruling that it discovered that it was “not possible to resolve these issues without delving into the merits of the case…” It, thus, ordered an accelerated hearing of the case. In Onyesoh v. Nnebedum (supra), Nnaemeka-Agu JSC explained further that “[t] he better view is, therefore, that whenever it is possible to accelerate the hearing instead of wading through massive affidavits and hearing lengthy argument on interlocutory injunction, the court should accelerate the hearing and decide finally on the rights of the parties,” citing John Holt Nig Ltd v. Holt African Workers Union of Nigeria and Cameroon (supra); Civil Service Union v. Essien (1985) 3 NWLR (pt 12) 306. However, the lower court did the exact opposite. It heard lengthy addresses: addresses which it described as “scholastic thesis (sic) on the subject of interlocutory injunction…” (page 462-464 of the record). It was when it found to its chagrin that it was “not possible to resolve these issues [in the addresses] without delving into the merits of the case” that it resorted to what Nnaemeka-Agu JSC prescribed as the better view in Onyesoh v. Nnebedum (supra), namely, to accelerate the hearing of the case.
It is against this background that we endorse the contention of counsel for the appellant that the decision is not in consonance with the reasoning of the apex court in Globe Fishing Industries Ltd and ors v Coker (supra). Indeed, in 7-UP Bottling Company Limited and ors v. Abiola and Sons Nigeria Limited (supra), after adumbrating the clear distinction between interim and interlocutory injunctions, Adio JSC proceeded thus at pages 276 – 277:
It is the extent to which a court can go, if at all, in the determination of contentious issues in the case when an application for an order of interim injunction or for an order of interlocutory injunction comes before it that constitutes one of the significant or decisive factors in the determination of whether all or any of them can be granted without hearing the other party or parties to the case in accordance with the provision of Section 33(1) of the Constitution.
In all, we take the view that, in the exercise of its discretion, the lower court acted on the wrong principles. We, therefore, have no hesitation is interfering with that exercise, Ntikidem v. Asuquo Oke (1986) 5 NWLR (pt 45) 909; Atanda and Ors v. Olarenwaju and Ors (1988) 4 NWLR (pt 89) 394, 397; Onyesoh v. Nnebedum (supra); Ogolo v. Ogolo (supra); Adejumo v. Ayantegbe (1989) 3 NWLR (pt 110) 417, 445.
We, therefore, resolve the first issue in favour of the appellant. With regard to the second issue, we, entirely, endorse the submission of appellant’s counsel that the issue which the respondent concreted for the determination of this appeal did not arise from the appellant’s grounds of appeal, Ahmed v. Trade Bank of Nigeria Plc (1997) 10 NWLR (pt.524) 290, 296, citing Ipika v. Esiri (1988) 2 NWLR (pt. 78) 563, 579 -580; Co-Operative and Commerce Bank (Nig) Plc v. Okpara and Anor [1997] 8 NWLR (pt. 518) 673, 691; First Bank of Nigeria Limited and Anor v. Owie (1997) 1 NWLR (pt. 484) 744, 752; Ibator and Ors v. Barakuro and Ors (2007) 9 NWLR (pt. 1040) 475, 487; Eliochin (Nigeria) Ltd v. Mbadiwe (1986) 1 NWLR [Pt. 14] 47; Oguma Associated Companies (Nigeria) Ltd v. I.B.W.A. Ltd (1988) 1 NWLR (pt. 73) 658, 681; Nzekwu v. Nzekwe (1989) 2 NWLR (pt.104) 373, 430.
Even then, an exegesis of Order 38 Rules 2 of the High Court Rules (supra) would reveal its provenance. It provides-
Whenever an application shall be made before trial for an injunction or other and on the opening of such application, or at any time during the hearing thereof, it shall appear to the Judge that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application, it shall be lawful for the Judge to make an order for such trial accordingly and in the meantime to make such order as the justice may require.”
The subordinate clause “without first going into the whole merits on affidavit or other evidence for the purposes of the application…” reveals the drafts person’s acquaintance with the extant jurisprudence on injunctive orders. Indeed, the above normative prescription would appear to have been drawn, largely, from the rigorous reasoning in John Holt Nigeria Limited and Anor v. Holts African workers Union of Nigeria and Cameroons (supra); Globe Fishing Industries v. Coker (supra); 7 – Up Bottling Company Limited and ors v. Abiola and Sons Nigeria Limited (supra).
Contrary to the submission of the respondent’s counsel on the import of the above provision of the High Court Rules and Section 24 of the High Court Law, we take the view that the question here is not the power of the preservation of the res. As Eso JSC noted in Kigo (Nig) Ltd v. Holman Bros (Nig) Ltd (1980) 5-7 SC 60, “it is incontestable that all courts of record possess powers of preservation of the res in their custody…. But the issue seems to…be to what extent, if any, is this expansive jurisdiction…procedurally circumscribed by the operation of the Rule of court…” also, per Achike JSC in Ezeokafor v. Ezeilo (1999) LPELR-SC.309/1989; see, also, 7-Up Bottling Company Limited and ors v. Abiola and Sons Nigeria Limited (supra) pages 276 – 277. Against this background, we hold that Order 32 Rule 2 (supra) and Section 24 of the High Court law (supra) did not clothe the lower court with the jurisdiction to decree a preservative order after it had concluded that it could not wade through the welter of affidavits without dabbling into the merits of the case. We, equally, resolve this issue in favour of the appellant.
Having resolved the two issues in favour of the appellant, we have no hesitation in allowing this appeal. Appeal allowed. We hereby enter an order setting aside the said ruling of Olateru-Olagbegi J. made on November 24, 2010 and dissolve the interim order which it granted in the said ruling. We award costs in favour of the appellant which we assess and fix at N30,000.
AMINA ADAMU AUGIE, J.C.A.: I read in draft the lead Judgment delivered by my learned brother, Nweze, JCA, and I agree with him that the decision of the lower Court must be set aside.
He addressed the issue at stake squarely, and I will say a few words on the Respondent’s argument that a Court can order an accelerated hearing in lieu of an interlocutory injunction and also make an order of interim injunction. This line of argument is completely out of tune with the law because there is a difference between Interim and Interlocutory Injunction – see Kotoye V. CBN & Ors. (1989) 1 NWLR (Pt. 98) 419 SC, where Karibi-Whyte, JSC, explained – “It is useful to examine the meaning and scope of the words “interlocutory” and “interim, which have been used very freely and often times regarded as interchangeable in applications for injunctions … An interlocutory application is an application, which can be made in the course of a proceeding, and at any stage of a cause or matter, for the purpose of keeping the parties in status quo till the determination of the action … The word “interim” used also in applications ad orders of injunction for maintaining the status quo of parties to a suit means “temporary” “in the meantime”. However, an injunction described as interim falls within the above definition and is an interlocutory injunction because it is an application made in the course of the proceedings. But unlike an interlocutory injunction properly so-called, an interim injunction is NOT one granted till the determination of the suit. It is an injunction made until a named date or until further order or until an application on notice can be heard. Thus, they bear all the features and trappings of an interlocutory injunction and granted upon the same consideration of equity. Interim orders for injunction can be made pending motion on notice of an interlocutory injunction where applicant is able to show that irretrievable damage may be done before the completion of the hearing of the Application – -. An interim injunction is intended to be temporary in its character and any person at whose suit such an injunction is obtained, is under an obligation to limit, as far as possible, the time during which it is operative – -. In such a case, the Court makes an order to preserve the status quo until the application for interlocutory injunction can be heard and determined”.
The above explanation speaks for itself, and the end result is that I also allow the appeal, and I abide by the consequential orders in the lead judgment.
CHINWE EUGENIA IYIZOBA J.C.A.: I read before now the judgment just delivered by my learned brother, C. C. NWEZE JCA. I agree with his reasoning and conclusions. He has dealt fully and comprehensively with all the issues raised in the appeal. It is indeed incomprehensible that after the learned trial Judge had spent precious hours hearing the various applications, all centered on whether or not to grant interlocutory injunction restraining the Appellants from commencing the construction works; writing a considered ruling stating that it was not possible to resolve the issues without delving into the merits of the substantive suit and instead granting accelerated hearing of the suit; to make a volte-face and grant an order of preservation of the status quo to the effect that all building and civil engineering work shall cease forthwith until the next date of adjournment. The procedure clearly flies in the face of well laid down principles of law on interlocutory injunctions as set out in the myriad of cases cited in the lead judgment. I wonder what would have happened on the next adjourned date. Would his Lordship have discharged the preservative order or extended it? I suppose we would not now know as the Appellant quickly on good counsel and as allowed by the laws of the land came to us for succor. He acted correctly and timely. I agree that the appeal has merit and should be allowed. I too hereby allow the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
A. A. Adegbonmire, with O. Iyayi (Mrs.) and O. FalayeFor Appellant
AND
I. S. UsmanFor Respondent
