THE REGISTERED TRUSTEES OF UGBORODO COMMUNITY TRUST & ORS v. MR. WELLINGTON OJOGOR & ORS (2014)

THE REGISTERED TRUSTEES OF UGBORODO COMMUNITY TRUST & ORS v. MR. WELLINGTON OJOGOR & ORS

(2014)LCN/7373(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/B/146/2001

RATIO

COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO FOLLOW THE PROVISION OF A STATUTE

COURT; DUTY OF COURT; THE DUTY OF THE COURT BEING A CREATION OF LAW TO COMPLY WITH THE PROVISION OF THE RULES OF PROCEDURE MADE UNDER THE SUBSTANTIVE STATUTE CREATING IT AND THE EFFECT OF NOT COMPLYING WITH THE PROVISION OF THE RULES

It is elementary in that each court being a creation of law is guided by its own rules of procedure, made under the substantive statute creating it and any failure to strictly comply with the provision of the rules goes to the competence of the application (motion). In other words the application becomes incompetent and so deprives the court of the vires to entertain the matter. See Onyemaizu vs. Ojiako (2010) LPELR 2738. per. HAMMA AKAWU BARKA, J.C.A.

COURT: JURISDICTION; THE PROPER ORDER OF A COURT THAT FINDS THAT ITS LACKS JURISDICTION
It is trite that where a court finds an action improperly constituted the proper order to make is to strike it out, and any further pronouncement on the merit of the action is incompetent and outside the court’s jurisdiction. See Universal Oil Ltd & Anor vs. NDIC (2008) LPELR 8557; Governor of Kogi State vs. Yakubu (2001) 5 NSCQR 598 at 607. per. HAMMA AKAWU BARKA, J.C.A.

COURT: DETERMINATION OF A CASE; WHETHER A COURT SHOULD NOT DELVE INTO QUESTIONS MEANT FOR DETERMINATION IN THE MAIN CASE AT AN INTERLOCUTORY STAGE

It is the stance of the court not to delve into questions meant for determination in the main case at an interlocutory stage, and I find the opinion of Ejiwunmi JSC in the case of Globe Fishing vs. Coker (1990) 7 NWLR (Pt.162) at 265, very apt in the present circumstance:
“It is my respectful view that the learned counsel for the appellants would appear to be unmindful of the fact that we are here concerned with an interlocutory action. With that in mind, this court cannot be invited to make pronouncement about this issue that will prejudice the trial. It is therefore my view that issue (1) cannot be determined at this stage.”
See also Nnamdi Azikiwe University Awka vs. Professor C. C Nweke (2008) NWLR (pt.1069) 504 at 512; Falomo vs. Bonigbe (1998) 60 LRCN 4166 at 4192; Ogbonnaya vs. Adalpham Nig Ltd (1993) 5 NWLR (Pt.292) 147. per. HAMMA AKAWU BARKA, J.C.A.

JUSTICES

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

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

1. THE REGISTERED TRUSTEES OF UGBORODO COMMUNITY TRUST
2. MR. JAMES EDUN
3. MR. EWORITSEMOGHA TSEBI
4. MR. DEA EDAH
5. HON. DEA KPEREGBEYI Appellant(s)

AND

1. MR. WELLINGTON OJOGOR
2. MR. MAYUKU UKUESIN
3. MR. PULLEN ESIMIMAJEMITE
4. MR. SUNDAY IGBAYE
5. MR. NAPOLEON AGUMA
6. MR. WYNNE AGBA
7. MR. JOHN OGBA
8. MR. UTIEYIN MAKU
9. MR. WILSON AKULEYIN
10. MR. BENSON OGBE
11. MR. MAJOR OGBE
12. MR. DANIEL OLUEHI
13. MR. SAMUEL EDAH
14. MR. DAVID OKOTUROH
15. MR. OJI EBI
16. MR. DANIEL EYENGHO
17. MR. AKONU
18. CHEVRON NIGERIA LIMITED
19. SHELL PET. DEV. CO. OF NIG. LTD.
20. NIG. WEST MINISTER DREDGING MARINE LIMITED Respondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of the Federal High Court sitting in Benin City, delivered on the 15th of June, 2001. In the said ruling, the court dismissed the appellants’ motion seeking to set aside the order of interim injunction earlier granted by the court on the ground that the motion was not supported by an affidavit.

The brief facts originating the present appeal as can be gleaned from the record are as follows:
The respondents as plaintiff at the Lower Court, filed an action against the appellants seeking for the following reliefs.
“(a) A declaration that by virtue of the Incorporation of the Ugborodo community trust in accordance with law, the trust becomes, and is the only legal proper and legitimate representative of the said Ugborodo community and its people.
(b) A declaration that by virtue of the said incorporation of the Ugborodo community trust, the plaintiffs and such other persons, the time being properly elected as officers of the trust, are the only accredited lawful and proper representative of the Ugborodo community, who are entitled to run the trust and receive on behalf of the Ugborodo community who are entitled to run the trust and receive on behalf of the community all financial compensation and other benefits/entitlements from oil companies and third parties operating on the community land.
(c) An order of perpetual injunction restraining the defendants, their agents servants, Privies or otherwise howsoever from further demanding and/or receiving any financial compensation or other benefits/entitlements due to the Ugborodo community from any individual or group, government, associations, corporations, companies including the 18th – 20th defendants herein, their contractors and subsidiaries.
(d) An order restraining the 18th – 20th defendants herein, their agents, servants, privies or otherwise howsoever from further dealing or relating with the 1st – 17th defendants herein on behalf of the Ugborodo community or otherwise recognising them or paying any money or other benefits due to the community through them or any person other than the plaintiffs herein and those duly authorised by them.

In the course of the proceedings, the plaintiffs/Respondents by way of a motion exparte, sought for and were granted interlocutory orders from the Lower Court in the following terms:
“It is hereby ordered as follows:
(1) That an interim injunction is hereby granted restraining the 1st to the 17th defendants/respondents their agents, servants, privies or otherwise howsoever from further demanding and receiving any financial compensation or other benefits/entitlements due to the Ugborodo community from any individual or groups, government, associations, corporation, companies, including the 18th – 20th defendants/respondents herein, their contractors and subsidiaries pending the determination of the motion on notice.
(2) The 18th – 20th defendants/respondents are hereby restrained either by themselves, agents, servants, privies or otherwise howsoever from dealing or relating with the 1st – 17th defendants/respondents herein on behalf of the Ugborodo community or otherwise recognising them as representatives of the said community or paying any money or other benefits due to the community through him or any person other than the plaintiffs/applicants herein.
(3) The 1st – 17th defendants/respondents are restrained either by themselves, servants, agents, privies or otherwise howsoever, from obstructing, disturbing or tampering in any manner whatsoever with the operations of the 18th – 20th defendants/respondents herein or their agents, servants and contractors in any part of Ugborodo community land.
(4) Leave is granted the applicants to serve the writ of summons and other processes in this suit on the 1st – 17th defendants/respondents herein by leaving same with the 5th defendant at Awani quarters Ajamimogha, Warri, Delta State.
(5) The applicants shall enter into an understanding indemnify the respondents of any loss should this order be found to be unlawful.
(6) This order shall be served on the respondents along with the motion on notice which shall be heard on the 7th day of May, 2001.”

Irked by this order, the appellants on the 3rd of May, 2001 filed a motion on notice praying the court to set aside the order of interim injunction made pursuant to the motion Ex-parte dated and filed on the 12/4/2001, and all orders therein and in the words of the appellants:
“Schedule:-
“The plaintiffs seek an injunction which the court from the process before it as set out in the order is one which the court cannot grant. In addition the plaintiffs do not possess any right whatsoever which needs protection by this court.
An order striking out the interlocutory injunction, application brought pursuant to motion on notice dated and filed 2/4/2001.
In the alternative:-
The said interim order together with the motion on notice, supporting affidavit do not possess any cause of action sufficient enough to persuade this honourable court to grant the same.”
And further take notice that the applicants will rely on the motion notice, affidavit in support thereof, the reliefs in the writ of summons and/or the reliefs set out in the statement of claim since they may be said to supercede those set in the writ of summons.”

Arguments were taken on the application and the Lower Court delivered a considered ruling on the 15th of June, 2001., dismissing the application on the ground that same is incompetent not having been supported by an affidavit, as demanded by O 9 R 3 of the Rules of Court.

Aggrieved with the said decision, the appellant on the 19th June 2001, filed a notice of appeal against the interlocutory decision on six grounds, upon which the appellants formulated two issues.

The appellants’ brief of argument was filed on the 29/11/2001, and two issues were formulated for the determination of the appeal.
“(1) Was the Lower Court right to have ruled that a motion paper shall at all times be supported by an affidavit (related to grounds (3 A, B, & D).
(2) Was the Lower Court right when it ruled that there was no conflict between paragraphs 18, 19 and 20 of the statement of claim, which constitute the cause of action in the proceedings and which take off/derived from the trust instrument purporting to empower the plaintiffs to execute labour contracts spelt out in the memoranda of understanding and relief 26C and 26D in the said statement of claim relative to ground 3e.”

The respondents; brief is dated the 7th of January, 2003, but filed on the 22/1/2003. It is apparent from the process that the 1st – 5th plaintiffs/respondents did not on their own formulate issues nor did they adopt the issues thus formulated by the appellants; but rather went head on, joining issues on the appellants second issue in the appellants brief of argument.

The 18th defendant/respondent filed a reply brief of argument on the 10/12/2002 to the 1st – 17th defendant/appellants/applicants’ motion for interlocutory injunction by order of court dated the 20/11/2002. The 9th defendant/respondents’ reply to the 1st to 17th defendants/appellants/applicants’ motion for interlocutory injunction by order of court made on the 20/11/2002 was filed on the 2/12/2002.
There are replies to the plaintiffs/1st – 5th respondents’ brief by the 1st – 17th appellants as well as replies to the 18th and 19th defendants/respondents.

We are not unmindful of a process filed by the 18th defendant/respondent seeking for order of this court striking out the 1st – 17th appellants’ appeal, on the ground that the substantive case at the Federal High Court upon which this appeal is predicated has been struck out on the 2/6/2004 by the learned trial judge, for lack of diligent prosecution.

There is no evidence showing that the aforementioned motion was moved. On the last hearing date, being the 15/5/2014, this court reserved this case for judgment oblivious of the pendency of the said motion dated the 3rd of October 2005, there being proof however that parties were duly served, and one of the parties being one interested in the aforementioned motion, the peculiar circumstance of the present case points to the inescapable fact that the applicant has lost interest in the application, and it is hereby struck out.

The respondents’ brief and the other briefs filed by the 18th and 19th defendants/respondents and the replies thereto all bother on the substantive case filed at the court below. This muddled state of things in the appeal notwithstanding, this court by Order 18 Rule (4) of the rules of court, considered the two briefs filed, and in the absence of all the counsel in the matter even though there is proof of service, the appeal was deemed as having been duly argued.

On Issue one
Was the Lower Court right to have ruled that a motion paper shall at all times be supported by an affidavit (related to grounds 3 A, B, & D).
The ruling of the court below delivered on the 15/6 /2001 forms the basis of the present appeal. In particular, the refusal of the Lower Court to set aside its interlocutory order earlier granted ex-parte. The appellants’ motion dated the 3/6/2001 is at pages 49 – 50 of the records. It is a motion on notice, pursuant to the inherent jurisdiction of the court. Mention must be made, that the motion does not bear an affidavit in support thereto. The Lower Court as stated earlier dismissed the application as being incompetent.

The appellants while conceding that the motion on notice is not supported by affidavit, argues rather lamely that he is not bound to attach an affidavit to the application and that the plaintiffs/respondents ex-parte application had no affidavit either but was granted the relief sought.

Order 9 Rule 3 of the Federal High Court Rules provides:
“Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely; and no affidavit shall be used at the hearing unless it is duly filed.”

The Lower Court appreciated the purport of the proviso cited and concluded that the absence of the affidavit has robbed the application of its steam, as there is no ground of any sort that is put forward for this application. The Lower Court relied on the dictum of the Supreme Court in Magnuson vs. Koiki (1993) 12 SCNJ 114, at arriving at his decision to the effect that an application borne on a motion on notice, ordinarily must be supported by an affidavit.

The law is that where a statute has made provision for steps to be taken in doing things, no other step than those prescribed should be followed: Amaechi vs. INEC (2008) 5 NWLR (Pt.1080) 227 at 256. It is my considered view, that Order 9 Rule 3 of the Federal High Court rules having provided that an application made by a motion on notice shall be supported with an affidavit duly filed, no other step in the circumstance can be taken, circumventing the mandatory provision of the rule.

The appellant had contended that failure to attach an affidavit to the motion paper in the instant case is an inconsequential issue as decided in the mentioned case of Araka vs. Ejeugwu (1999) 2 NWLR (Pt. 589) p.109 at 129 per Akpabio JCA.
He went further to argue that Order 16 Rule 5 of the Anambra State High Court (Civil Procedure) Rules 1988 is applicable to the Federal High Court going further to say that the rule is of general application. This submission is totally erroneous in view of the holding in the case of Araka vs. Ejeugwu (supra) at P.122:
“Since all the facts the respondent required are already part of the record, by virtue of the counter affidavit, the respondent in the circumstance is not required to depose to affidavit of the facts which are already forming part of the proceedings that the respondent would be required to depose…”
Glaringly, the appellants rooted their argument on a wrong perception of the case cited if not mischievously made. The dictum alluded thereto, is in respect of a respondent and not an applicant as in the present case. It is elementary in that each court being a creation of law is guided by its own rules of procedure, made under the substantive statute creating it and any failure to strictly comply with the provision of the rules goes to the competence of the application (motion). In other words the application becomes incompetent and so deprives the court of the vires to entertain the matter. See Onyemaizu vs. Ojiako (2010) LPELR 2738.
This court re-stated the position when it said:
“If the motion for judgment was filed on the 4/3/93, and the affidavit supporting it was filed on the 8/3/93, it is clear that at the time the motion was filed on 4/3/93, there was no supporting affidavit in existence. Therefore the motion is incompetent. A motion must at the time of filing it be supported by an affidavit of facts.”
CCB Plc. Vs. Masterpiece Chemicals Ltd (2001) FWLR 1423 at 1439. See also Aladeusi vs. Dangana (1975) NNLR 190 at 192 – 194; Abubakar vs. Omoruyi (1973) NNLR 48; Free Enterprises (Nig) Ltd vs. GTOSA (1998) 1 NWLR (pt.532) P.1 at P.19; CBN vs. Man export SA (1987) l NWLR (Pt.47) 86 at 99.

The Lower Court having properly dismissed the appellants’ motion on notice for want of affidavit in support thereof, issue one founded on grounds 1 – 4 of the appeal is resolved against the appellants.

On Issue two.
Was the Lower Court right when it ruled that there was no conflict between paragraphs 18, 19 and 20 of the statement of claim which constitute the cause of action in the proceedings and which take off/derive from the first instrument purporting to empower the plaintiffs to execute labour contracts spelt out in the memorandum of understanding and reliefs 26(c) and 26D in the said statement of claim relative to ground 3E.
The Lower Court having ruled that the appellants’ motion was incompetent, lacked any jurisdictional power to consider any of the matters canvassed in the motion. Nonetheless, after dismissing the motion as being incompetent, the Lower Court proceeded to consider what it called a ground raised in the motion, to the effect that the court should vacate the order of interim injunction, on the grounds that the application is not flowing from the substantive action. He then ruled that the writ of summons and the statement of claim of the plaintiffs reveals that reliefs C and D claims injunction, and the application for injunction before him is based on the reliefs in the substantive action.

This forms the appellants’ ground of appeal and the issue therefrom. In arguing this issue, learned counsel went as far as to arguing the substantive case, which is before the Lower Court. All other parties to the case, submitted in similar vein.

I wish to reiterate that what is before this court is whether the appellants’ motion of 3/6/2001 was rightly dismissed.
It is trite that where a court finds an action improperly constituted the proper order to make is to strike it out, and any further pronouncement on the merit of the action is incompetent and outside the court’s jurisdiction. See Universal Oil Ltd & Anor vs. NDIC (2008) LPELR 8557; Governor of Kogi State vs. Yakubu (2001) 5 NSCQR 598 at 607.

A critical look at the arguments on issue 2, canvassed by the appellants and the respondents thereto, relate to the substantive suit, before the Lower Court. This court cannot entertain the issue, as to do so will prejudice the trial of the substantive case at the Lower Court, and it is hereby discountenanced.

The final deduction is that I see no merit in the entire appeal and it is hereby dismissed.

Costs of N50,000 is awarded to the respondents.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Instructively, the fundamental principles upon which an interim injunction may be granted by a court of competent jurisdictional competence have been clearly set out in 21, Halsburys Laws, 3rd Edition, especially under paragraphs 765 & 766 @ pages 365 and 366. It’s not necessary to set them out. Suffice it to say, that upon an application for interim injunction, the applicant is required to satisfy, vide an affidavit, that (i) there is a substantial issue to be tried at the hearing; (ii) that he has a strong prima facie case for the reliefs sough; and (iii) that it’s not fair that he should continue to suffer hardship until the hearing of the matter. See EGBE VS. ONOGUN, SC.284/1970; 18/02/7; AGBA Vs. IBRU SEA FOOD LTD (1972) 5 SC; (1972) LPELR 230 (SC), per Ademola, CJN (of blessed memory) @ 7 paragraphs B – F.

By the very nature thereof, an interim injunction is invariably an equitable remedy normally granted by the court prior to the final determination of the substantive question raised in the case. It is fundamental objective is to keep matters in status quo while the substantive action is still pending. See ORJI VS. ZARIA IND. LTD. (1992) ANLR 450; (1992) 23 NSCC (Pt.1) 1; (1992) 1 NWLR (Pt.216) 124; (1992) LPELR – 2768 (SC) per Wali, JSC; THE MIL. GOV. OF LAGOS STATE VS. OJUKWU (1986) 2 SC 277; (1986) 1 NWLR (Pt.18).

In the case of KUFEJI VS. KOGBE, which aptly deals with the practice and procedure governing applications for interim injunction, the Supreme Court held thus:
In an application for interim relief by way of injunction, it is not necessary that a plaintiff should make out a case as would do on the merits. It being sufficient that he should establish that there is a substantial issue to be tried at the hearing. See (1961) All NLR 113 @ 114, per Coker, JSC. See also EGBE VS. ONOGUN (1972) All NLR 94; (1972) LPELR – 103 (34) per Sowemimo, JSC as he then was.

Of the two issues formulated by the Appellants, in the brief thereof, filed on 29/11/2001, the second issue is most instructive, and it reads thus:
(2) was the Lower Court right when it ruled that there was no conflict between paragraphs 18, 19 and 20 of the Statement of claim, which constitute the cause of action in the proceedings and which take off/derived from the trust instrument purporting to empower, the plaintiffs to execute labour contracts spelt out in the memoranda of understanding and relief 26C and 26D in the said Statement of Claim relative to ground 3e.

It is so obvious from the said second issue reproduced above, that the question raised therein directly relates to the substantive issue upon which the suit is predicated. Thus, to determine the second issue at this material stage of the appeal would undoubtedly prejudice the trial of the substantive case. I am, therefore, of the firm view that the second issue cannot, and ought not to, be determined on the merits at this stage of the appeal. Indeed, it is a well settled doctrine, to the effect that a court has a duty not to determine substantive issue (case) at an interlocutory stage. This trite fundamental principle has been reiterated in a plethora of authorities, including GADI VS. MALE, wherein this court aptly held, inter alia, thus:
At on interlocutory state, it behoves the court to exercise an extra-caution, and avoid making any comment or observation therein that may in effect predetermine the substantive or main issues in the appeal (or substantive case, as the case may be) which are relative to the interlocutory application. See (2010) 7 NWLR (Pt.1193) 225 @ 274 -275 paragraphs H – A; 290 – 291 paragraphs G – B.

Hence, in the light of the above postulations, I have no hesitation in concurring with the reasoning and conclusion reached in the lead Judgment just delivered by my learned brother, the Hon. Justice H. A. Barka, JCA, to the effect that the instant appeal is devoid of merits.

Consequently, the appeal is equally dismissed by me. The ruling of the Federal High Court, holden at Benin City, delivered on 15/6/2001 in suit No.FHC/B/CS/89/2001 by S. J. Ada, J; (as he then was), is hereby affirmed. I abide by the order of costs of N50,000.00 awarded in favour of the Respondents, against the Appellants.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother H. A. Barka JCA in this appeal. His Lordship has admirably considered and resolved all the issues in contention in this appeal. I totally agree with the reasoning and conclusions reached therein. I have nothing more useful to add except to concur that in entertaining the arguments canvassed on issue 2, this court will be acting in prejudice of the trial of the substantive suit at the Lower Court.

Consequently, I too see no merit in this appeal and I dismiss it accordingly. I abide by his Lordships order as to costs.

Appearances

Parties not represented.For Appellant

AND

Parties not represented.For Respondent