Administrator-general Cross River State V. Chukwuogor (Nigeria) Limited & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

On 2/6/03 the plaintiffs commenced an action by writ of summons in the High Court of Cross River State Ikom Judicial Division. Endorsed on the writ are the following reliefs:

“1. A declaration that the estate which the defendant purports to manage is owned by the 1st plaintiff and therefore not subject to the Administrator-General Law Cap 3 Laws of Cross River State.

2. An order for the revocation of the letters of Administration granted to the 1st defendant.
3. An order of perpetual injunction restraining the defendants their agent’s servants or privies from intermeddling with the estate of the 1st plaintiffs.
4. The sum of N10m as general damages for intermeddling with the estate of the 1st plaintiffs”.

On the same day 2/6/2003 the plaintiffs filed a motion ex-parte pursuant to order 33 r.1 (2) of the High Court Rules of Cross River State praying the court for the following:

“1. An order of interim injunction restraining the defendants their agents servants or privies from further interfering in any manner howsoever with the assets and properties of the 1st plaintiff situated at No 3 & 5 Ogoja Road, Ikom; 4 Chukwuogor lane, Ikom, plots at Old Army Barracks, Ikom and Cocoa Farm plantations at Okunde, Etomi Road and Agbekim Mgbabor along Effraya Road, pending the determination of a motion in notice.

2. An order of interim injunction restraining the defendants their agents servants or privies from collecting rents from tenants or purporting to lease out the aforesaid properties pending the determination of a motion on notice.
3. For any other orders as this Honourable court may deem fit to make in the circumstances of this case.”

The motion was supported by a 23 paragraph affidavit and in addition the plaintiffs filed a 13 paragraph affidavit of urgency, both deposed to by Chukwuma Chukwuogor, the 2nd plaintiff.

In its ruling dated 4/6/03 the court below granted the reliefs sought and ordered the 2nd plaintiff applicant to give a written undertaking to the Registrar of the trial court to pay N10,000.00 damages should the application turn out to be frivolous.

Aggrieved by the ruling and the order therein made the appellants, appealed to the court on six grounds hereunder reproduced without their particulars:

“Ground one Error in Law:

The learned trial Judge erred in law when in granting the ex-parte order of injunction he listened to and considered fraudulent allegations against the defendant/appellant without putting her on notice or giving her an opportunity to be heard thereby breaching the rule of fair hearing as entrenched in section 36 of the constitution of the Federal Republic of Nigeria, 1999.

Ground two Error in law:

The learned trial Judge erred in law when he failed to recognize the role of the defendant/appellant in the administration of the estate considering the circumstance of the estate.

Ground three Error in Law:

The learned trial judge erred in law when in an ex-parte application he granted an order of injunction which has the effect of interfering with, frustrating and paralyzing the statutory functions of the Administrator-General and Public Trustee without giving her an opportunity to be heard thereby breaching the rule of fair hearing as entrenched in section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

Ground Four Error in Law:

The learned trial Judge erred in law when he failed to recognize the legal and statutory position of letter of Administration granted the Administrator-General and Public Trustee by the Chief Judge of the state before resting to grant an exparte order.

Ground Five Error in Law

The learned trial judge erred in law when he assumed that in a matter bordering on a company’s asset and in respect of which the promoter and majority share holder is deceased letters of Administration cannot be granted to the Administrator-General and Public Trustee to administer the assets or estate of the deceased even when there is serious dispute over control of the estate.

Ground Six Error in Law:

The decision/order of the learned trial judge should be set aside because it is unwarranted and cannot be supported having regards to the applicable law and circumstances of the case”.

In compliance with the rules and practice of the court the parties by their respective counsel filed and exchanged briefs of argument.

From the six grounds of appeal filed the appellant formulated the following issue for determination:

“Whether the trial judges exercise of discretion in granting the interim injunction ex-parte was right and proper considering the facts and circumstance of this case and the Law.”

In his own brief learned counsel for the respondents raised a preliminary objection, pursuant to his notice for same, on the following decree grounds:

1. The 2nd and 3rd appellants who prepared the record of appeal smuggled into the records the affidavit of Chinwuba Chukwuogor filed after the order appealed against had been made.
2. The facts in the offending affidavit were made the foundation of the arguments in support of issues Nos 2 and 3 in the brief of the 2nd and 3rd appellants and the only issue in the brief of the 1st appellant, the Administrator-General.
3. The arguments in support of the issues based on the said facts are incompetent.”

Learned counsel formulated the following two issues for determination:

“1. Whether the learned trial Judge was right in granting the exparte order of injunction in given the facts before him.

2. Whether the High Court of Cross River has jurisdiction to entertain the suit.”

At the oral hearing of the appeal learned counsel for the appellant adopted and relied on his brief and the reply brief and urged the Court to allow the appeal. Learned counsel for the respondent also adopted and relied on his brief and the preliminary objection argued therein and urged the court to dismiss the appeal and affirm the order of the court below.

In his brief of argument learned counsel for the appellant, in arguing the one issue submitted that an order of interim injunction is granted only in situations of real, as opposed to self-imposed urgency. He added that such orders preserve the status quo and protect the rights of the parties from destruction by any of the parties where it is truly impossible to give notice of a motion for interlocutory injunction. He referred to Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 for the parameters to be borne in mind by a trial judge considering an ex-parte application for an order of interim injunction. In the case cited counsel drew attention to the judgment of Nnaemeka-Agu to the effect that-

“By their very nature injunctions granted on ex-parte application can only be properly interim in nature. They are made without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days…… such injunctions are for cases of real urgency. The emphasis is on ‘real’.”

Learned counsel said the appellant was issued letters of administration to administer the unrepresented and disputed estate of the deceased on the 14th day of May 2003 and that the respondent were aware of the grant more than two weeks before going to court. Counsel questioned the real urgency and the mischief sought to be prevented such that it was impossible to give notice of the motion to the appellants. He posed the question-what was the status quo on the date of filing the motion ex-parte. Counsel argued there was neither real urgency nor a need to avert mischief. He said the crux of the entire case is that letters of administration ought not to have been granted to the appellant. Counsel urged the court to invoke the maxim omnia praesumuntur rite esse acta-the law presumes all acts of state to have been properly done. Counsel conceded that the presumption is rebuttable but argued that the facts deposed to in the affidavit in support of the application did not establish the claim that the grant of the letters of administration was tainted by fraud or misrepresentation, mistake or any other error of law or fact or that the enforcement of the letters of administration ought to be kept in abeyance. Learned counsel relied on Administrator-General and Public Trustee V. Asika Ilobi (1972) ECSLR Vol.2 (Pt. 11) 587 at 594 and section 11(1) (a) and (b) of the Administrator-General Law of Cross River State and submitted that the grant of letters of Administration ought to be regarded as proper and above board until set aside by a court of competent jurisdiction. Counsel argued that until a competent court decides to the contrary trial court was obliged to lend full credence and protection to the letters of administration. Learned counsel said that the status quo on 4th June, 2003 when the court granted the ex-parte orders was that the 1st appellant was in control of the estate. He asserted that by holding that there was an illegal or brazen use of force the court aided the respondents to set aside the legitimate process of Cross River State Chief Judge, adding that even if there was such a use of force, the respondents had not been able to show that such force was unlawful or that the Administrator-General was wasting the estate. According to learned counsel the order amounted to an abuse of ex parte orders. Learned counsel urged the court to allow the appeal, hold that the application for interim injunction was frivolous and consequently set aside the ruling of the trial Judge delivered on Wednesday, the 4th day of June 2003 and to discharge the order of interim injunction made therein. Learned Counsel urged the court to determine the amount of damage suffered by the 1st appellant due to the grant of the interim injunction and to order that the first and second respondents pay such sum immediately to the 1st appellant. He urged this court to transfer the suit to another Judge of the High Court of Cross River State for hearing and determination.

In his own brief of argument learned counsel for the respondents argued the preliminary objection for which he gave notice in the brief. The objection was based on the following three grounds:

1. The 2nd and 3rd appellants who prepared the records of appeal smuggled into the records the affidavit of Chinwuba Chukwuogor filed after the order appealed against had been made.
2. The facts in the affidavit were made the foundation of the argument in support of issues Nos 2 and 3 in the brief of the 2nd and 3rd appellant and only issue in the brief of the 1st appellant, the Administrator-General.
3. The arguments in support of the issues based on the said facts are incompetent.

In his argument on the preliminary objection learned counsel relied on Edosowan V. Erebor (2001) 13 NWLR (pt.720) 265 at 295; Anaekwe V. C.O.P. (1996) 3 NWLR (Pt.436) 320 at 332; Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397 at 413, Kano Textile Plc V. G & H (Nig.) Ltd (2002) 2 NWLR (Pt.751) 420 at 445 all to the effect that in the compilation of the records of appeal, materials not before the lower court must be expunged from the record.

Arguing issue one in his brief learned counsel for the respondents submitted that the facts before the lower court made it crucial for the court to intervene with the grant of an interim injunction in accordance with the principles enunciated by the Supreme Court in Kotoye V. CBN (1989) 1 NWLR (Pt.98) 419.

Counsel said the fact of urgency ought to be located in the affidavit of urgency and urgency should not be viewed from the perspective of time frame alone but also from the severity and consequences of the acts and conduct complained of. Counsel stated that the 1st respondent after obtaining the letter of administration proceeded to invade the estate with thugs and policemen and carted away five bags of cocoa beans after intimidating the lessees. He argued that the appellants would have preferred a situation where they are served with a motion on notice and before the motion is heard they would have thrown out all the tenants and lessees and then plead that a court does not grant an injunction against a completed act. According to learned counsel even if the lower court was minded to make an order of mandatory injunction putting the tenants back the appellants would employ the process of appeal and stay of execution of frustrate the order.

On status quo learned counsel relied on the Supreme Court’s definition of the phrase in Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt.18) 621 at 646 to mean the period before the dispute or controversy. He said the controversy in this case started when the defendants connived and secretly obtained letters of administration and proceeded thereafter to employ the crudest of methods and self-help to eject persons in actual possession of the estate. According to learned counsel the status quo maintained by the lower court was the state of affairs before the 26th of May 2003 when the defendants trespassed and attempted to eject the tenants from the estate.

On the issue of delay regarding the period 26/5/03 to 2/6/2003, respondents said they needed time to investigate the action of the defendants and their source of authority. They briefed lawyers and proceeded to examine documents, some of which came from the Corporate Affairs Commission in Abuja. Time was need for counsel to painstakingly analyze the facts to build a case. He referred to the judgment of Nnaemeka-Agu JSC in Kotoye V CBN (supra) where the court held:

“… The rationale of an order made on such an application is that delay to be by proceeding in the ordinary way by putting the other side in notice would or might cause irretrievable or serious mischief.”

He said the serious mischief in this case is the imminent “war” that would have commenced between thugs recruited by the appellants and the tenants and lessees who were in possession of the estate.

On the charge that the lower court decided live issues in the ex-parte application learned counsel conceded that the trial Judge certainly made comments based on the facts contained in the affidavit and the laws cited during the argument of the motion. He argued that no matter how scathing the Judge’s comments may be they do not translate to decisions or orders of the court, and that in any case punishment for a Judge deciding substantive matters in interlocutory applications is to deny him the opportunity of continuing to hear the substantive matter and no more. Balance of convenience, according to counsel, is not an attribute of ex-parte injunction and so did not come up for consideration. He urged the court to resolve the issue in his favour.

In issue 2 in his brief he submitted it was premature to determine the issue of jurisdiction. The writ of summons and statement of claim are the two processes that would determine the question of jurisdiction to be filed. He referred to Aremo II V. Adekanye (2004) 13 NWLR (Pt. 891) 572 at 590; and Multi-Purpose Ventures Limited v. A.-G., Rivers State (1997) 9 NWLR (Pt.522) 642 at 662. In the alternative counsel argued that even if the endorsements on the writ were used to determine jurisdiction there is nothing in them to deny the High Court of Cross River State jurisdiction to entertain the matter. He said the dispute relates to the grant of letters of administration, which the respondents seek to revoke. The companies, and Allied matters Act 1990 is not involved and not everything a company does is covered by the provisions of S. 251 (1) (e) of the constitution. He cited the following cases:

F.B.N. Plc V. Jimiko Farms Ltd (1997) 5 NWLR (Pt.503) 81 at 92-93; Bi Zee Bee Hotels Ltd v. Allied Bank Ltd. (1996) 8 NWLR (Pt.465) 176: N.I.D.B. v. Fembo (Nig.) Ltd. (1997) 2 NWLR (Pt.489) 543; Garba v. Shaba Int. (Nig.) Ltd. (2002) 1 NWLR (Pt.748) 372 at 389. He said the appellant did not formulate issues in respect of grounds of appeal relating to jurisdiction and urged the court to dismiss the appeal on the grounds that all the conditions for the grant of an ex-parte application were met and the High Court of Cross River State has jurisdiction to entertain the action.

In reply to the preliminary objection argued by the respondent learned counsel for the appellant referred order 3 r. 15(1) of the Court of Appeal Rules. He said an objection contemplated by order 3. r.15(1) (supra) must be such as would, if it succeeds, terminate the hearing of the appeal in limine. He relied on Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314; (pt 22) 314, Kwari v. Rago (2000) FWLR (Pt.22) 1129 at 1142, paras B-C; Ohadugba v. Garba (2000) FWLR (pt 16) 2721 at 2732-2733, paras. G-A; (2000) 14 NWLR (Pt.687) 226. Counsel said the respondents did not object to the hearing of the appeal but objected on the ground that facts that were not before the lower court at the time the order appealed against was made were smuggled into the record of appeal, and were made the foundation of the argument in support of the salient issues in the appellant’s brief of argument. What purports to be a preliminary objection is a mere argument based on facts not law which ought to have been presented by affidavit. In addition, learned counsel argued that even if the objection is sustained and the offending materials struck off, the 1st appellant would still have a viable appeal. He said the application for leave to compile a bundle of documents and a further application to use the bundle of documents as the records for the appeal were granted without objection. According to learned counsel the respondent waived the right to object to the contents of the record. Counsel submitted that the contents of the records of appeal are presumed correct and the parties bound by the records unless the contrary is proved. Learned counsel relied on the following cases: Texaco Panama Inc v. S.P.D.C.N. Ltd. (2002) FWLR (pt 96) 579 at 605, paragraphs B-C; (2002) 5 NWLR (Pt.759) 209; Sommer v. F.H.A (1992) 1 NWLR (Pt. 219) 548 at 558 para A; United Bank for Africa Plc v. Ujor (2002) FWLR (Pt. 88) 1014 at 1029 paras F-H; and submitted the respondent, if dissatisfied with the contents of the record, should have challenged same by an affidavit and not by way of preliminary objection.

On the respondent’s argument on the merits of the appeal, learned counsel said that the respondents were bound to demonstrate a situation of real urgency sufficient to compel the trial court to preserve the status quo. Counsel maintained that the respondents merely created a self-imposed urgency. Counsel referred to the affidavit of the respondents and said that the respondents reported the matter to the police on 26/5/2003 and waited till June to initiate the action in court. In conclusion counsel said the preliminary objection was raised in bad faith and that the respondents did not show the real urgency that could have warranted the grant of the order of interim injunction. He urged the court to dismiss the preliminary objection and allow the appeal.

Order 3 rule 15 provides for notice of preliminary objection.

Order 3 rule 15 (1) provides

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the registrar within the same time.”

A preliminary objection is an opposition to the hearing of the appeal. Its purpose is to terminate the hearing of the appeal in limine either in part or the whole appeal. What the respondent calls preliminary objection cannot, even if it succeeds scuttle the hearing of the appeal. In actual fact what the respondent complained of is the content of the record of appeal. Respondent can only challenge the said facts by way of affidavit. Even if the preliminary objection is sustained it will result only in striking out the materials complained and if this is done the appellant would still have a valid appeal. The so-called preliminary objection cannot be sustained and is hereby dismissed.

In case the appeal is allowed and the matter sent back to be tried de novo I will restrict myself to the issue whether or not the court below was justified in making the order based on material before it.

Ex-parte injunction is appropriate in a situation of real urgency disclosed in affidavit. The purpose is to preserve the res from irreversible destruction or damage before service of a motion paper on the opposite party can be effected. See Kigo v. Holman (1980) 3-4 SC p.60 at 70.

Bearing the above in mind one may ask what is the res that need to be preserved by order of ex-parte injunction? It is the estate of late Chukwuogor for the which letters of administration had been granted to the Administrator-General and Public Trustee, Cross River State. There is no evidence that the estate is in danger of irreversible destruction or damage, so the need to preserve it by ex-parte injunction does not arise.

Both the respondent and the court below appear to have been concerned by the need to protect the right of those the court called innocent third parties. With due respect the third parties, innocent or otherwise, not being parties to the proceedings cannot have ex-parte order made in their favour. They are not parties either directly or by representation. See Peenok Investment Ltd v. Hotel Presidential Ltd. (1982) 12 SC 1. In so far as the court below based its order on the need to protect the interest of those who are strangers to the proceedings the order is gratuitous and made without jurisdiction.

If a court cannot grant a party before it a relief not asked for then there can be no bases for a court making order in favour of a non party to the proceedings who necessarily has not asked for any relief. See Bank of the North Ltd. & Anor. v. Aiyu (1999) 7 NWLR (Pt.612) 622; Ogbe v. Esi (1943) 9 WACA 76; Ekpenyong v. Nyong (1975) 2 SC 71; and Oyediran v. Amoo (1970) 1 ALL NLR 313.

The State Chief Judge granted letters of administration on 14/5/03. There is no evidence to suggest that the respondents were not aware of the grant or that by virtue of the letters of administration the appellant was entitled to enter the premises of the estate and take over and manage same. Respondents did not commence their action challenging the grant of the letters of administration until 2/6/2003. They had ample time put the appellant on notice but the explained that they employed the time together materials to build up their case. In the interim they lodged a report to the Police over the same issue. Where then is the real urgency or urgency at all to warrant the order made by the lower court. If there was any urgency, it was self-induced. See Bank Boston USA & Ors v. Adegoroye (2000) 2 NWLR (Pt.644) 215; Kotoye v. CBN (1989) 1 NWLR (pt.98) 419.

Another issue is the status quo to be maintained. At the grant of the letters of Administration the appellant acquired a legal right, by virtue of the grant, to enter and take over the control and management of the estate. If the appellant was a trespasser, the status would have been the state of affairs before the trespass but since the appellant acted pursuant to the letters of administration the status quo is the state of affairs on 14/5/03 when the chief judge granted the letters of administration.

There was an issue as to the date of the ruling. The drawn order was dated 3/6/03 whereas the motion was argued on 4/6/03. The respondent tried to explain the dates by saying that the motion was earlier adjourned to 3/6/03 and that the date on the order was inserted in-error. To make matters worse the Chief Registrar of the State High Court arrogated to himself the power to correct an order made by the court. The said correction is invalid and I cannot see any indication from the records that the case was ever adjourned to 3/6/03. The obvious and disturbing implication is that the order was actually drawn up on 3/6/03 prior to the hearing of the motion on 4/6/03. The order cannot be said to have been made in the motion which was argued on 4/6/03. If there was need to effect any correction the court has inherent power to do so. See Ogwuegbu v. Agomuo & Ors. (1999) 7 NWLR (pt 609) 144; Umunna v. Okwuraire (1978) 11 NSCC 319. The court has no power to delegate this function to the Chief Registrar or any other person.

The correction, effected without proper authority is ineffective, the fact is, as things stand the order was drawn up on 3/6/03 even before the motion was taken the next day 4/6/03. In effect there is no nexus between the order drawn up, signed and sealed on 3/6/03 and the motion argued on 4/6/03. There was therefore no order made in respect of the motion taken on 4/6/03.

I have carefully considered the arguments in the briefs with particular attention to the authorities cited by learned counsel for the parties. I hold that the appeal has merit and accordingly it is allowed.

The order of ex-parte injunction purportedly made in the motion argued on 4/6/03 but which order was dated 3/6/03 is hereby discharged.

The matter is to be heard by another judge of the High Court of Cross River State.

Respondents to pay to the appellant costs assessed at N10,000.00.

Appeal allowed.

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Other Citations: (2006)LCN/1953(CA)