Chief Chukwuma Onuzulike & Ors V. His Royal Highness C.o. Nwokedi Utoko Iv, (Igwe of Achalla) (1988)
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UWAIFO, J.C.A.
The circumstances in which an interim order sought upon an ex-parte application may be granted have not in recent times in this country,in many cases, been fully taken into consideration in judicially exercising the discretion in respect thereof. There seems to be a growing feeling that the salutary purpose of that remedy intended for deserving emergency is being lost sight of, and in some situations, abused. The provisions of Order 35 rule 11 of the High Court Rules (Cap 61) Laws of Eastern Nigeria 1963 applicable in Anambra State appear sometimes to have been misconceived and consequently applied out of context of the entire Rules for obtaining interim injunction as if it is an acceptable alternative to the established principles of fair hearing whereby the other party is given an opportunity to contest the applicant’s prayer for such injunction.
The plaintiff/respondent is the traditional ruler of Achalla Town in Awka. He seems to have fallen out with some of his people. He considers that the members of the executive of a body known as Achalla Improvement Union, 25 in number, who he named as the defendants in this case are responsible for his predicament.
On 18th December,1987,the plaintiff filed an action at the Awka High Court in Suit No. AA/145/87 against the said persons as defendants, claiming the following reliefs:
“1. A declaration that the imposition of a levy/tax of N50, 000.00 (Fifty Thousand Naira) contained in the Defendants’ letter of 19/4/87 under pain of ostracism on the plaintiff, who is the traditional Ruler and recognised Chief of Achalla Town in Awka Local Government Area, a custodian of the native law and custom of the said Town,is against the native law and custom,oppressive, vindictive,illegal and unconstitutional and void.
- A declaration that the order of the Defendants of Achalla Town to boycott the Traditional/Christian rites relating to the funeral of the plaintiff’s mother, Madam Umerie Nwokedi on 14/11/87 is illegal, vindictive and wrongful.
- A declaration that the sounding of the traditional gong/drum at the instructions and or directives of the Defendants without the knowledge, consent and authority of the plaintiff, as the traditional ruler of Achalla Town is against the native law and custom of the said Town and disruptive of the peace and good government of Achalla Town.
4.An injunction restraining the Defendants by themselves,their servants and agents from imposing or continuing to impose the said levy,the said order of ostracism and sounding the gong/drum.”
On 23rd December, 1987 the plaintiff filed a motion ex-parte asking for an order of “Interim injunction restraining the 1st to 25th Defendants/Respondents by themselves, their servants, agents and privies from holding and/or conducting the Achalla Town Union Meeting scheduled for 26th December, 1987, or any other subsequent date and disruptive of the peace and good government of Achalla Town, pending the hearing of the Interlocutory application.” It has been said, and this is common ground, that the application, at the request of counsel for the plaintiff, was amended to read that the order should be made to last “pending the hearing of the substantive suit.”
It will be observed outright that the interim order sought does not seem to have been occasioned by any of the four reliefs in the claim and a careful perusal shows that none of the reliefs seeks to restrain by permanent injunction the functioning of the said Achalla Improvement Union. It is therefore a matter of real concern how an interim injunction could have been sought to restrain their proposed meeting. Besides, the plaintiff not being a member of the Union and not being a law enforcement agent could hardly be heard to want to restrain the holding simpliciter of the meeting of that Union, and/or even taking certain decisions thereat. The defendants have their right enshrined in Section 37 of the Constitution to associate and assemble freely for the protection of their social interests.
However, the motion ex-parte was heard by Obiesie, J., that same day whereupon he made an order in his record as follows:
“Application is hereby granted pending the hearing of the substantive suit in AA/145/87. All relevant documents should be served on defendants/respondents within a period of two weeks. The said respondents are at liberty to apply to set same aside within two weeks from the date of service of the Order of this court.”
The defendants subsequently moved that the interim order be discharged but in a ruling given on 25th February, 1988 the learned Judge declined to do so. Instead, he varied the order to continue in force “pending the hearing of the interlocutory application.” Counsel for the plaintiff has conceded that that variation was not asked for and was therefore a nullity. That meant therefore that the order in its original terms remained.
The defendants in their four grounds of appeal against the ex-parte interim order question the validity of the order, the propriety of the subsequent variation made to the order and the failure to discharge the said order. I do not need to set the grounds of appeal out but I shall reproduce the issues for determination raised in the Appellants’ Brief. They read as follows:
- Whether it was proper,upon an ex-parte application, for the trial court to have made an interim order of injunction on the 23rd December, 1987, to last till the final determination of the substantive suit.
- Whether having made the said order of 23rd December, 1987, it was proper for the court to vary the same order on 25th February, 1988, the said having been drawn up and already made effective; and whether the court has the inherent jurisdiction to do so.
- Whether the learned trial Judge can make the varied order of court of the 25th of February, 1988, to be contingent upon a non-existing Interlocutory Application.
- Whether the court’s order of the 23rd of December, 1987 is constitutionally valid in law. If not, can it be subsequently made to be so by variation or otherwise howsoever.
The plaintiff as respondent in his Respondent’s Brief of Argument also raised three relevant issues for determination, the last of which being, in my view, all-embracing. They read:
- Whether the order made by the learned Trial Judge on the 23rd day of December, 1987 was in substance a final order and if so what is the effect in law?
- Whether the purported variation order made by the learned trial Judge on the 25th of February, 1988 in any way affected the validity of the earlier order made on the 23rd of December, 1987″
- Whether considering the peculiar circumstances and all the relevant facts of this case the order granted by the Lower Court on the 23rd of December, 1987 should be discharged?
The Judge relied on Order 35 rule 11 of the High Court Rules to entertain the ex-parte motion. This of course he is entitled and empowered to do.
“Where an order is made on a motion ex-parte, any party affected by it may, within seven days after service of it, or within such further time as the court shall allow, apply to the court by motion to vary or discharge it; and the court, on notice to the party obtaining the order, either may refuse to vary or discharge it, or may vary and discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.”
In my view there is nothing in rule 11 which is intended to alter the concept of interlocutory applications and the usual practice. That rule, as all others for obtaining ex parte injunction, is meant to meet emergency situations. When it is resorted to, it must be in compliance with the known practice and procedure for treating interim orders made ex-parte. It does not in my view relieve the applicant of the duty to follow up the matter by a motion on notice and 1 think a court of justice has a duty to ensure this process in the way it grants the ex-parte injunction. Order 35 deals with Interlocutory Applications of which ex parte motions form a part. However, provisions are also therein made for motions which shall put the other party on notice. A contest under motion on notice may admittedly become dilatory and may not be able to save an urgent situation. But its very essence has not in any way been replaced by motion ex- parte.
Under Section 16 of the High Court Law (Cap 61) it is provided that:
“The jurisdiction vested in the court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of court as may be made pursuant to this Law or any other written law, and, in default thereof, in substantial conformity with the law and practice observed in England in the High Court of Justice, on the thirtieth of September, 1960.”
It is also necessary for me to refer to Order 21 rules 4 and 5. Rule 4 provides inter alia:
“In any suit for restraining the defendant from the committal of any injury … it shall be lawful for the plaintiff at any time after the commencement of the suit … to apply to the court for an injunction to restrain the defendant from the committal of any … injury relating to the same right, and such injunction may be granted by the court on such terms as to the duration of the injunction … as to the court shall seem reasonable and just:
Provided always, that any such order for an injunction may be discharged or varied, or set aside by the court, on application made thereto by any party dissatisfied with such order.” (Emphasis mine).
Rule 5 then says:
“The court may, in every case, before granting an injunction or order as aforesaid, direct such reasonable notice of the application for the same to be given to the opposite party as it shall see fit.”
All these powers and discretion are exercised by the judges of the High Court of Justice in England. The relevant question here is how have they been doing this? In England, an injunction will not usually be granted without notice, but if the court is satisfied that the delay caused by the proceeding in the ordinary way might entail irreparable or serious mischief, it may make a temporary order ex-parte upon such terms as it thinks just: see London and County Banking Co. v. Lewis (1882) 21 Ch. D. 490 C.A.; Piperno v. Harmston (1886) 3 TLR 219 C.A.; Llyods Bank Ltd. v. Medway Upper Navigation Co. (1905) 2 KB 359 C.A. It has been held that the granting of ex-parte injunctions is the exercise of a very extraordinary jurisdiction and therefore the time at which the plaintiff first had notice of the act complained of will be looked at very carefully in order to prevent an improper order being made against a party in his absence: per Lord Langdale M.R. in Earl of Mexborough v. Bower (1843) 7 Beav. 127 at 131.
Such interim order in the nature of an injunction restraining the defendant is usually granted until after a named day or until further order. That is of course in anticipation of notice of motion which is yet to be heard on the merits: see Fenwick v East London Railway Co. (1875) LR 20 Eq. 544. Sometimes, before the named date or the motion on notice comes on for hearing, liberty is reserved to the defendant to move to discharge the interim order with liberty similarly for the plaintiff to pursue his motion on notice. In that case, of course, the plaintiff has a duty to begin as he has the burden to make out a case for the injunction: see Fraser v. Whalley, Gartside v. Whalley (1871-73) All ER Rep 1456. An interim order made to extend over a certain day or “until further order” means that the further order, if made, must be before the named day and not intended to extend the order beyond that day: see Bolton v. London School Board (1878) 7 Ch.D. 766. That obviously shows that the life of an ex-parte injunction should normally be short or brought to an end with the minimum of delay usually on hearing the interlocutory application.
The affidavit in support of such an application must disclose all material facts and in this country the source of information of matters deposed to must be given as required by section 85 of the Evidence Act. It is also the law that at the hearing of the application, the case put forward must correspond with that set out in the statement of claim, if any, or the reliefs or any of the reliefs in the claim: see Butts v. Matthews (1836) 5 L.J Ch. 134.
This therefore calls attention once again to the nature of the reliefs sought in the claim. The only relevant one is perhaps the injunction sought as the 4th relief. But on a close examination of each of the four reliefs and a true understanding of Order 21 rule 4 (above stated with relevant emphasis), the order sought in the ex-parte application can be seen to have no foundation upon which to stand. It is simply a prayer to restrain the defendants from holding a meeting, not related to or predicated on any of the four reliefs sought in the claim. For instance, there is no relief seeking that the Union is an illegal association so as to justify restraining the members from holding a meeting. Worse still is that the only paragraphs of the affidavit in support of the ex parte application do not remotely contain any fact in compliance with the Evidence Act. They are paragraphs 13, 14, 15, 16 and 17, and read as follows:
“13. That a meeting summoned by the defendants/Respondents for 26th December, 1987, is to pass a resolution calling for my removal as the traditional and recognised Chief/Ruler of Achalla Town a move -if allowed- will create factions and unrest in the town.
- That the moves of the defendants/respondents are geared towards silencing me and others who have questioned and have continued to pray and demand for the account of moneys collected and handed over to the defendants/respondents.
- That the defendants/respondents are bent on ruining the peace and stability of Achalla Town, a situation that has never happened before in the town.
- That the activities of the defendants/respondents are geared towards disrupting and destabilizing the government of the town to facilitate their nefarious acts. Further that once Chieftaincy tussle erupts in Achalla, that will totally paralyse progress since Chieftaincy by tradition belongs to a section of the town.
- That if the meeting of 26th December, 1987, is held, and the defendants/respondents have their way, there is bound to be in Achalla Town, irreconcilable camps which will lead to a breach of the peace.”
As can be seen, there is nothing disclosed as to how the plaintiff knew what the defendants were going to discuss at that meeting and the source of information as to why they were thought to be bent on “silencing” him and ruining the peace and stability of Achalla Town. All other matters in those paragraphs are mere arguments, speculation and conclusions. No court ought ever to have acted on the affidavit to grant an injunction. Again, no fact is disclosed as to the date the plaintiff knew about the impending meeting in order that the need for an urgent order of injunction could be made obvious: see Earl of Mexborough v Bower (supra).
Now I turn to other specific issues relating to the order itself. From what has been said, it is clear that it could not have been a proper exercise of jurisdiction to make an interim order of injunction upon an ex-parte application to last till the final determination of the substantive suit. That cannot be done by taking liberty of Order 35 rule 11 which permits interim order of injunction ex-parte. That rule has done no more than stipulate the possibility and usefulness and the procedure of making an interim order of injunction ex parte. It is not intended to do away with the need for motion on notice to have the interlocutory injunction decided on contested facts: see Beese v. Woodhouse (1970) 1 All ER 769 C.A.
It will therefore not be proper to deny a defendant the opportunity to contest the granting of that relief by making the duration of an interim order ex-parte coterminous with the determination of the substantive suit. In Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt 26) 39 at 44 this court observed that that order in that form should never be on ex-parte application. See also Eguamwense v. Amaghizemwen (1986) 5NWLR (Pt 41) 282 at 291. I think it is pertinent to say here that after the judge permitted the motion paper to be amended to read “pending the hearing of the interlocutory application”,it pre-supposed that the ex-parte interim order was made contingent upon such an application as if it had already been filed and pending in court. But in turned out to be a mere facade and the least that can be said is that the ex-parte order ought to have been discharged upon the simple ground that it was obtained by misrepresentation or perhaps misconception of the true facts that an interlocutory application was pending or at any rate urgently forthcoming: see Wimbledon Local Board v. Croydon, etc. Authority (1886) 32 Ch.D. 421.
As it is, it can be said that the use made of Order 35 rule 11 has engendered a result which calls into question the constitutionality of the entire exercise. While ex-parte interim Order may serve propitious end in an emergency and therefore the process of securing it can be regarded as a tolerable exception to the rule of natural justice, once the order meets the course of justice, the manner of foreclosure it was used in this case against the defendants and the circumstance in which an application for its discharge was refused, even though no interlocutory application was then ever filed, tend to put the element of fair hearing provided in Section 33 of the Constitution under real stress. If that is how it has been made to operate by the dramatis personae here,the result of what was done, but not necessarily the provision of the said Order 35 rule 11, would certainly be unconstitutional because of the way the defendants were subtly or unfortunately parried.
The attention of this court was drawn to the case of University of Lagos v. Olaniyan (unreported) suit No. FCA/L/5/81 delivered on 27 February, 1981 where Nnaemeka-Agu JCA said:
“There can be no doubt that primarily fair hearing within the context of S.33 of the Constitution entails that other parties shall be given the right of prior hearing in open court, … that there is a provision in the rules for an application to set aside the order after it has been made, in my view, falls short of the right given to the appellants under Section 33.”
This was in reaction to the use of ex-parte interim order of injunction and it seems quite justified and deserves to be allowed to re-echo even to the point of deafening those who misuse ex parte injunction. It is not a reason that because the defendants were given an opportunity to apply to have the order discharged no necessity arose or remained for an application for interlocutory injunction pursuant to that ex-parte injunction to be brought by the applicant or if brought, listed for hearing. That would mean shifting the burden upon the applicant to make out a case on contested facts for such an injunction on to the respondents. That is an utterly bad conception and a wrong procedure. The burden is on the applicant to make out a case for an interlocutory injunction: see Fraser v. Whalley (supra); and not that that burden should be regarded as having been discharged simply because the defendants did not succeed in having the ex- parte injunction vacated. As is well known,ex-parte injunction may be challenged on a technicality or point of law only and not always on the merits.
I am satisfied from all the circumstances of this matter that the ex-parte injunction granted against the defendants since 23rd December, 1987 was most irregularly made and upon the facts was unwarranted and undeserved.
The argument was advanced that only the first defendant appealed against the injunction and that the other 24 defendants were deemed not to wish it dissolved. I do not think from the facts that the others were not aggrieved and have not appealed. But even if it were so that they have not appealed, the law has been laid down that where an injunction has been granted against two or more defendants and only one of them applies to dissolve it, the court has jurisdiction to dissolve the injunction against all the defendants: see R. D. Harbottle (Mercantile) Ltd. v. National Westminster Bank Ltd. (1977) 2 All ER 862 at 872. I respectfully agree with that statement of the law. I hold also that it applies to an appeal lodged against such injunction and a refusal to discharge it.
I hereby allow this appeal. The interim order of injunction ex-parte made by the Awka High Court on 23rd December, 1987 against the defendants/appellants is accordingly set aside and the motion ex-parte is struck out. I award costs of N300 in favour of the appellants.
Other Citations: (1988) LCN/0047(CA)
