Abel O. Woluchem v. Dr. charles Inkotariah Wokoma (1974)

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D. IBEKWE, J.S.C. 

This appeal is unusual in the sense that it is from a decision which is not what it purports to be a consent judgment. It is a rambling judgment, which does not seem to have decided anything. On the other hand, the trial in the court below was, in our view, marred by some serious procedural mistakes and errors in law to such extent that the whole proceedings could be described as a “comedy of errors”. Throughout the trial save during the contempt proceedings, no witnesses were called; the trial was conducted by means of affidavits and counter-affidavits.

To be able to do justice to the case therefore, we think that, we should review stage by stage, the proceedings in the court below. At every convenient moment, we shall endeavour to set down our views on the procedure adopted, and the law applied by the lower court.

On the 29th June, 1972 the plaintiff (herein respondent) filed an action in the Port Harcourt High Court for trespass against the defendant (herein appellant) claiming 500 Pounds damages for trespass and injunction. On the 31st of July, 1972 pleadings were ordered, but were never filed. Plaintiff was given 90 days within which to file his Statement of Claim and the defendant, 120 days to file the Statement of Defence.

On the 9th August, 1972, the plaintiff filed an ex parte motion praying for an interim injunction; that same day, the plaintiff also filed a motion on notice for an interim injunction. On the very next day, the 10th of August 1972, the ex-parte motion was heard in Chambers. The application was granted, pending the hearing of the motion on notice. The relevant portion of the proceedings reads as follows:

“In Chambers: Mr. Allagoa to move. Order granted as prayed. Defendant/Respondent to cease carrying on any operation on the land in dispute pending the determination of the motion on notice on 15/8/72.”

An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt.

It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice. In our view, therefore, it should be a rule of practice that the court will not save in exceptional circumstances grant interlocutory injunction on an ex-parte application. We also think that, it should, at least, be made a rule of prudence that all interlocutory applications in civil matters should be made and heard in open court. It is desirable that the courts in this country should desist from following the English practice of hearing applications in chambers for the simple reason that the set-up and the circumstances which obtain in England in such cases are different in Nigeria.

In the case before us, it happened that two identical applications, one ex parte, and the other on notice, were filed in court by the plaintiff on the same day namely, the 9th August, 1972. But for reasons which are not apparent from the record of appeal, the learned trial judge chose to hear the ex-parte application in chambers on the following day 10th August, 1972.We think that the learned trial judge should not have overlooked the fact that there were pending before the court two identical applications for the same relief. It seems to us that the ends of justice could have been better served by granting accelerated hearing in favour of the application on notice. At any rate, we are satisfied that an application of this kind should not be summarily dealt with in chambers, as was done in this case. The grant of interlocutory injunctions is governed by certain principles of law, whose application seems to be largely dependent upon a proper evaluation of the evidence.

The rule is that a plaintiff seeking an interlocutory injunction must establish a strong prima facie case for the existence of his right, and at least, that he was likely to succeed on that issue, and also a prima facie case of infringement of his right. In exercising its discretion to grant the relief, the court would have regard to the balance of convenience. We fail to see how a court of law could be able to satisfy all or any of these principles before pleadings were filed, and without evaluating some sort of evidence, (be it oral or affidavit evidence) adduced by both parties.

At this state, we think it is desirable to refer to the case of Donmar Productions Ltd. v. Bart (1967) 1 W.L.R. 740 at 742, where Ungoed Thomas J., after considering at length the principles which govern the grant of interlocutory injunctions said, inter alia, as follows:

“So in an application for an interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trial.

It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiffs can be cured by payment of damages rather than by the granting of an injunction. Of course, the burden of proof lies on the applicant

throughout.”