Chief Engr. Nnaemeka & Anor. V. Chukwuogor (Nig.) Ltd. & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

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 sought by the plaintiffs against the defendants:

“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 orders of Administration granted to the 1st defendant.
3. An order of perpetual injunction restraining the defendants and their agents servants or privies from intermeddling with the estate of the 1st plaintiff.
4. The sum of N10m as general damages for intermeddling with the estate of the 1st plaintiff.”

On the same day 2/6/03 the plaintiffs filed a motion ex-parte pursuant to Order 33 rule 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 plantation at Okunde, Etomi road, and Agbokim Mgbabor along Effraya Road, pending the determination of a motion on notice.
2. An Order of interim injunction restraining the defendants, their agents, servant 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 a 13 paragraph affidavit of urgency, both deposed to by Chukwuma Chukwuogor, the 2nd plaintiff.

In its ruling dated 4/6/03 the lower court 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 made therein, the defendants now appellants appealed to the court on six grounds, hereunder reproduced, shorn of their particulars:-

Ground One

The learned trial Judge erred in law when he assumed jurisdiction to entertain a suit that borders on the management,control and operation of a company and its assets under the Companies and Allied Matters Act, court matter is within the exclusive jurisdiction of the Federal High Court by virtue of section 251(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999.

Ground Two

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 the parties an opportunity to be heard, through breaching the rule of fair hearing as entrenched in section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

Ground Three

The learned trial Judge misdirected himself in law when he failed to consider the applicable legal principles for the grant of ex-parte injunction to the circumstances of the case before him, before granting the ex-parte order of injunction.

Ground Four

The learned trial Judge erred in law when he failed to recognize the legal and statutory position of a letter of Administration granted the Administrator-General and Public Trustee by the Chief Judge of the State before rushing to grant an ex-parte injunction. The order completely decided the substantive and live issues between the pm1ies.

Ground Five

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 such assets or estate even where there is serious dispute over control of the estate.

Ground Six

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 laws and circumstances of the case.” Pursuant to the practice and procedure of the court, the parties, through their counsel, filed and exchanged briefs of argument.

In his brief of argument learned counsel for the appellants formulated three issues from the six grounds of appeal filed. The three issues for determination are:

“1. Whether the High Court of Cross River State has jurisdiction to entertain a suit, which borders on the management, control and operation of a company and its assets.

2. Whether the learned trial Judge was right in granting the ex-parte order of injunction having regards to the applicable law and circumstances of the case.
3. Was the learned trial Judge right in refusing to recognize, respect and give effect to the letters of administration granted the 1st appellant by the Chief Judge of Cross River State to administer the disputed and un-represented estate of the late Chief Emmanuel Marshall Oguguor Chukwuogor and the statutory position of the 1st appellant to administer such estate under the Administrator-General Law, Cap. 3, Laws of Cross River State of Nigeria, 1981?”

In his own brief of argument learned counsel for the respondent gave notice of, and raised a preliminary objection.

Learned counsel presented the following two issues for determination:

1. Whether the learned trial Judge was right in granting the ex-parte order of injunction given the facts before him.
2. Whether the High Court of Cross River State has jurisdiction to entertain the suit.

In substance the respondent adopted the 1st and 2nd issue framed by the appellants. I adopt the appellant’s three issues as appropriate for the determination of the appeal. At the oral hearing of the appeal learned counsel for the appellant adopted and relied on his amended brief of argument as well as the reply brief filed in response to the preliminary objection. He urged the court to allow the appeal and set aside the ex-parte order of injunction.

Learned counsel for the respondent adopted and relied on the respondent’s brief as well as the preliminary objection argued therein. He urged the court to dismiss the appeal and affirm the order of the court below.

In issue one in his brief framed from ground 1, learned counsel for the appellant referred to the claim endorsed on the writ of summons and said that the 1st plaintiff (that is the 1st respondent) being a Limited Liability Company its operation is regulated by the Companies and Allied Matters Act and ipso facto the jurisdiction of a State High Court is ousted. He relied on section 251(1)(e) of the Constitution of the Federal Republic of Nigeria 1999, section 7(1)(c)(i) of the Federal High Court Act, Cap. 134, Laws of the Federation of Nigeria, 1990 and section 659 of the Companies and Allied Matters Act, 1990. He relied also on the case of Kadzi International Limited v. Kano Tannery Co. Limited (2003) FWLR (Pt.84) 225 at 284 – 291 paragraphs G – D; (2004) 4 NWLR (Pt. 864) 545. He relied on Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 296-287 (sic) paras. G – A; Adeyemi & Ors. v. Opeyori (1976) FNLR 149; (1976) 9 – 10 SC 31; and Madukolu & Ors. v. Nkemdilim & Ors. (1962) 1 All NLR 587 at 595; (1962) 2 SCNLR 341 all for the principle that it is the claim of the plaintiff that determines the jurisdiction of the court to entertain same.

Learned Counsel contended that the claim is not within the jurisdiction of a State High Court. He referred to Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539 at 54 (sic) and argued that the State High Court cannot arrogate to itself powers which the Constitution has excluded from it. He referred to section 272 of the Constitution of the Federal Republic of Nigeria, 1999 from where the High Court of Cross River State derives its powers and jurisdiction. He said the said section is made subject to S. 257 of the Constitution which reserves exclusive jurisdiction in the Federal High Court to entertain matters arising from the operation of companies or its assets and urged the court to resolve issue one in the negative.

In issue 2 framed from grounds 2, 3 and 6 learned counsel referred to paragraph 4 of the affidavit of Chikwuba Chukwuogor at pages 110 -111 of the records and said the letters of administration were issued by the State Chief Judge on 14th May, 2003. The initial exercise of administering the estate by the 151 appellant was done on 26th May, 2003. He referred to paragraphs 15, 16, 17 and 18 of the supporting affidavit at pages 5 – 6 and 11 -12 of the records and said that the respondents were fully aware that the 1st appellant had taken over the estate more than two weeks before they went to court to obtain an ex-parte order. He said one of the principles for the grant of ex-parte injunction is that the situation must be one of extreme, real urgency, and not self-imposed urgency. He referred to Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 also reported in (2001) FWLR (Pt.49) 1567). He relied on Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391 for his contention that the emergency envisaged by law arises only if the other party cannot be put on notice before irreparable damage is done, otherwise the application will fail. He said that the order was contrary to Order 33 Rule 1(2) of the High Court of Cross River State pursuant to what the respondents brought their motion. Learned counsel further argued that if there had been a state of real urgency the delay in filing the application defeated the state of urgency and the trial Court should not have granted the ex-parte order of injunction. He relied on Ita v. Bekonson (2001) FWLR (Pt.62) 1877 at 1892; (2001) 6 NWLR (Pt. 710) 626 and Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt.12) 306 and Kotoye v. CBN supra. Another principle which counsel said the learned trial Judge had a duty to consider is the principle of balance of convenience and maintenance of status quo. He relied on Co-operative and Commerce Bank (Nig.) Plc v. Ozobu (1998) 3 NWLR (Pt.541) 290 at 300 and Kotoye v. CBN (supra). He relied on Lafferi Nigeria Ltd. v. Nal Merchant Bank Plc (2001) 35 WRN 106 at 118; (2002) 1NWLR (Pt. 748) 333 and argued that the learned trial Judge should have considered whether irreparable damage that cannot be compensated by the award of damages would be done to the applicants if injunction was not granted. He referred to Metro-gas Ltd. v. Eferakeya (2001) FWLR (Pt. 39) 1442 at 1454 – 1455 for the principle that injunction is usually not granted in cases of completed or already executed acts.

He said that the learned trial Judge was in error when he issued the ex-parte order of injunction that altered or reversed rather than maintaining the status quo, for which he cited John Holt Nig Ltd. v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383: Kotoye v. CBN supra and Kadiya v. Kadiya (2001) FWLR (Pt.20) 1586 at 1597; (2001) 14 NWLR (Pt. 734) 578. He referred to the finding of the learned trial Judge and the conclusions reached and argued that the learned trial Judge had virtually granted all the reliefs claimed by the respondents in the writ of summons, leaving only the claim for N10m damages. He urged the court to hold that the orders were made without regard to any known principle for the grant of ex-parte order of injunction and urged the court to set it aside. Among other things learned counsel argued that the trial court had a duty to uphold the sanctity of the letters of administration granted by the State Chief Judge until it is proved that the State Chief Judge did not issue same properly. Learned Counsel urged the court to allow the appeal, set aside the decision of the learned trial Judge contained in the ruling dated 4/6/03 and to discharge the order made on 3/6/2003 and strike out the application for want of jurisdiction.

In his own brief of argument learned counsel for the respondent gave notice of preliminary objection on the following grounds:-

1. The 2nd and 3rd appellants who prepared the record of appeal smuggled into the records of 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 argument in support of the issue based on the said facts and incompetent. In his argument on the preliminary objection learned counsel relied on Edosomwan v. Erebor (2001) 13 NWLR (Pt. 730) 265 at 295 Anaekwe v. COP (1996) 3 NWLR (Pt. 436) 320 at 332; Dickson v. Okoi (2003) 16NWLR (Pt. 846) 397 at 413; Kano ile Printers Plc v. G & H (Nig) Ltd. (2002) 2 NWLR (Pt.751) 420 at 445 all to effect that in the compilation of the record of appeal materials not before the lower court must be excluded from that record.

In his argument in issue one learned counsel submitted that the facts before the lower court made it crucial for the court to intervene by way of interim injunction. He said the order was in conformity with the principles enunciated by the Supreme Court in Kotoye v. C.B.N. (supra) and therefore unassailable. Counsel said the fact of urgency was disclosed in the affidavit of urgency and urged the court to view the urgency not from time frame alone but also from the severity and consequences of the acts and conduct complained of. Counsel said the 1st appellant did not comply with section 24 of the Administrator-General Law of Cross River State but connived with the 2nd and 3rd appellant to employ thugs to take over the estate. On the issue of status quo raised by the appellants, learned counsel relied on Governor of Lagos State v. Ojukwu (1986) 1 NWLR (PU8) 621 at 646 wherein the term was defined to mean the period before the dispute or controversy. Counsel said the controversy started when the defendants connived and secretly obtained letters of administration and proceeded to eject tenants from the estate. According to learned counsel, the status quo to be maintained was the state of affairs before the 26th May, 2003 when the defendants trespassed into the estate in attempt to eject tenants therefrom. On the issue of delay in bringing the application learned counsel said the action was initiated on 2/6/2003 to stop the collection of rent scheduled for 4/6/03. He argued that the period between 26/5/03 and 2/6/03 was used in the preparation to institute the case. Counsel contended that the mischief sought to be averted was the irretrievable loss of lives and limbs that would have resulted from a clash between the appellants’ thugs and the tenants in possession of the estate. Learned counsel argued that balance of convenience raised by the appellants is not an attribute of ex-parte injunction. According to counsel balance of convenience falls for consideration in application for interlocutory injunction. In the alternative learned counsel said the justice of the case demanded that the application be granted. He urged the court to hold that the court below was right in granting the order based on the facts before it.

In issue 2 learned counsel said it was premature to determine the issue of jurisdiction as no statement of claim had been filed. Counsel cited the case of Aremo II v. Adekanve (2004) 13 NWLR (Pt. 891) 572 at 590 to support his argument that the writ of summons and the statement of claim are the two processes that would determine the question of jurisdiction. Jurisdiction cannot be determined on the facts in the affidavit or the writ, which is superceded by the statement of claim. He referred to Multi-Purpose Ventures Ltd v. A.-G., Rivers State (1997) 9 NWLR (Pt.S22) 642 at 662. According to learned counsel, the endorsement on the writ of summons is not conclusive on the issue of jurisdiction though the endorsement on the writ shows that the court below has jurisdiction to determine the suit. He referred to section 251(1) (e) of the Constitution and said the suit arose from the operation of the Administrator-General Law, Cap. 3, Laws of Cross River State and not from the operation of the Companies and Allied Matters Act. He cited FBN 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; NIDB v. Fembol (Nig.) Ltd. (1987) 2 NWLR (Pt. 489) 543; and Garba v. Sheba Int. (Nig) Ltd. (2002) 1 NWLR (Pt. 748) 372 at 389 in support of his argument that everything a company does is not necessarily covered by section 251(1)(e) of the Constitution. He argued that no issue was raised by the 1st appellant in respect of the grounds of appeal relating to jurisdiction and urged the court to consider such grounds abandoned.

On the 2nd and 3rd appellants issue 3 which is subsumed in the appellants’ issue 2, he urged the court not to pronounce on matters still to be determined by the court below in the main case.

On the other hand, he said the court did not refuse to recognize, respect and give effect to the letters of administrator as this will be determined in the substantive matter.

In conclusion, learned counsel for the respondent urged the court to dismiss the appeal as all the conditions for the grant of exparte application were met and the High Court of Cross River State has jurisdiction to determine the action.

In his reply brief learned counsel for the 2nd and 3rd appellants referred to Order 3 rule 15(1) of the Court of Appeal Rules and argued that for an issue to be raised, it must be one which when upheld, will terminate the appeal. He cited Kwari v. Rago (2000) FWLR (Pt. 22) 1129 at 1142, para. D and argued that an objection to the hearing of an appeal, which, when sustained is not capable of terminating the appeal should not be styled preliminary objection. Even if sustained, the objection of the respondents will not terminate the appeal. The issue as raised relates to the correctness of the record and not a preliminary objection. He relied on Ohadugba v. Garba (2000) FWLR (Pt.l6) 2721 at 2732 – 2733; (2000) 14 NWLR (Pt.687) 226 and said a notice of preliminary objection is not appropriate where the respondent is not objecting to the hearing of the appeal. Learned Counsel argued that the respondent should have filed an affidavit challenging the records for which he relied on Sommer v. Federal Housing Authority (1992) 1 NWLR (Pt.219) 548 at 558; Agwarangbo v. Nakande (2000) 9 NWLR (Pt. 672) 341 at 360. He urged the court to hold that even on the merit the respondent’s objection ought to be dismissed. The facts complained of are properly before the court. He relied on Funduk UK Engineering Ltd. v. MC Arthur (1995) 4 NWLR (Pt.392) 640 at 652 and Texaco Panama Inc. v. PDCN (2002) FWLR (Pt.96) 579 at 605; (2002) 5 NWLR (Pt. 759) 209.

With reference to page 1 paragraph 2.2 of the respondent’s brief where it was stated that;

“the motion ex-parte came up for hearing on 3/6/03, the Judge adjourned the matter to 4/6/04 …”

Counsel urged the court to expunge the statement of facts as it is not part of the record. Counsel submitted that no real urgency was disclosed on the affidavit and that it was wrong for the court below to condemn the issue of letters of administration without hearing from the 1st appellant in particular. On the facts before it the lower court was bound to invoke the presumption of regularity of official acts in line with S. 150(1) and 2 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. The trial court was not entitled to set aside the letters of administration ex-parte and order the 1st appellant out of the estate.

On the respondent’s argument on status quo, learned counsel said what the respondents have in mind is status quo ante bellum as G against status quo ante litis envisaged by law. He said the case of Ojukwu (supra) is not applicable because the issue in that case was status quo pendence litis and not status quo ante bellem. Learned counsel said the order was meant to assist the respondents regain possession of the property in possession of the 1st appellant and not to avert the consequences of any face-off between the tenants and the appellants’ thugs as argued by the respondents. According to counsel, the period between 26/5/03 and 4/6/03 is long enough for the respondents to have put the appellants on notice. According to counsel, the urgency if any in this matter was self-induced. Learned counsel argued that the trial court relied on the attacks on the 1st appellant and rushed into prejudicial conclusions without affording the affected parties an opportunity to be heard.

Learned counsel submitted that jurisdiction being a threshold issue can be raised at any stage in the proceedings, citing in support the cases of Bright Motors Ltd. v. Honda Motor Co. Ltd. (1998) 12 NWLR (Pt.577) 230; Bello v. Usman (1999) 4 NWLR (Pt.599) 380 at 389 and argued that the issue of jurisdiction has to be determined by a court before embarking on any exercise of Judicial function. He submitted that it is the law that jurisdiction of a court to hear a matter is invariably determined by the claim of the plaintiff. He relied on A-G., Anambra State v. A-G., Federation (1993) 6 NWLR (Pt. 302) p. 692. Counsel submitted that it will be bad for our system if a plaintiff can be allowed to go to court and obtain an order exparte on a set of facts based on the relief endorsed on the writ of summons and then ask the court not to use the claim to determine its jurisdiction because by the time he comes with the statement of claim the court will have jurisdiction. Learned counsel called in question the propriety of the Assistant Chief Registrar of the High Court purporting to correct an enrolled order of the court already signed, sealed and served on the affected parties. Counsel said that the Assistant Chief registrar’s letter and the purportedly “correct order” at pages 129 to 131 of the record do not form part of the records. He referred to Ishie v. Ansa (2001) FWLR (Pt.80) 1529 at 1606 – 1607; (2005) 15 NWLR (Pt. 948) 210 and said that though a Judge can correct errors such as simple mistakes, grammatical errors or any slip in the judgment or order, he has no right to re-visit the judgment or the record to add or delete what had been written. He referred to Asiyambi v. Adeniji (1967) 1 All NLR 82; Adigun v. A-G., Oyo State (1987) 2 NWLR (Pt. 56) 197; Obioha v. Ibero (1994) 1 NWLR (Pt. 322) 503; and Ezenwa v. J.C. Ltd. (1994) 7 NWLR (Pt. 356) 292 on the procedure and scope and limit of the power of a court to vary or amend its judgment or order once delivered or drawn up.

He argued that on the principle established in the above cases the Assistant Chief Registrar of the High Court of Cross River State has no power to amend or correct a drawn up order of court duly signed and sealed by the learned trial Judge and served on the parties affected by the order. Counsel argued that if the respondents think the order was wrongly drawn up and wish to have it corrected it is their duty to apply to the court to have the order rectified as was held in Anyaorah v. Anyaorah (2001) FWLR (Pt. 73) 178 at 197; (2001)7 NWLR (Pt. 711) 158; and Olurotimi v. 1ge (1993) 10 SCNJ 1; (1993) 8 NWLR (Pt. 311) 257.

Learned Counsel referred to Order 40 rule 9 of the High Court of Cross River State (Civil Procedure) Rules, 1987 which provides:”

Every Order, if and when drawn up, shall be dated the day of the week, month and year in which the same was made unless the court or a Judge in Chambers shall take effect accordingly.”

Counsel argued the Registrar has no power in law to correct a court order already drawn up, signed, sealed and served on the parties affected by same, particularity when the fact sought to be corrected has become an issue in the processes already filed in court. He argued that it is improper for the respondents to approach the registrar to issue letters purporting to correct an order the appellants were already challenging as having been drawn up before the proceedings leading to the order took place. According to counsel, it is only the Judge who can correct the order if there is any or but it must be on application duly served on all the parties. For the reasons above, counsel said he did not include either the Registrar’s letter or the purportedly corrected order in the record he compiled for the appeal. He urged the court to allow the appeal and set aside the orders of the learned trial Judge. The entire proceedings are tainted with too many irregularities and illegality. He urged the court to strike out the suit for want of jurisdiction.

Order 3 rule 15 provides for notice of preliminary objection. Order 3 rule] 5(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 inaffidavit. 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 (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC p.60 at 70.

Bearing the above in mind one may ask what is the res that needed to be preserved by order of ex-parte injunction? It is the estate of late Chukwuogor for 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 exparte 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 pm1ies. 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 Peen ok Investments 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. Aliyu (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 to put the appellant on notice but they explained that they employed the time to gather 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 N.A. USA & Ors. v. Adegoroye and Anor: (2000) 2 NWLR (Pt. 644) 215; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419.

C 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. Okwuraiwe (1978) 11 NSCC 319; (1978) 6 – 7 SC 1. 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. 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/1947(CA)