Chief Oyibo Agbomagbo & Anor V. Chief Oloku Okpogo & Ors (2005)
LawGlobal-Hub Lead Judgment Report
U.M. ABBA AJI, J.C.A.
In the present appeal, the Appellants as the Plaintiffs, took out a writ of Summons against the five Original Defendants in this Suit on the 29 day of May, 1984, before the Delta State High Court, Warri, claiming declaratory and injunctive reliefs against the said five original Defendants.
On the 30th of May, 1984; the Appellants obtained an interim order of injunction against the Defendants restraining them from installing any person as the Odio-Ologbo of Ofagbe. On the 23/10/86, the Court upon the application to discharge the Order of Interim Injuction dismissed the application and in consequence, affirmed the interim order granted by it.
By a motion Ex-parte, dated the 28th day of January, 1999, the present 3rd defendant and Chief Matthew Ikpoku and Attorney General, Delta State, were joined in the suit as 7th and 8th Defendant’s respectively and further Orders of interim injunction made against them. By a motion on notice, dated 9th day of February, 1999, which followed the motion Ex-parte, the Appellants claimed the following orders:-
- Restraining the 7th Defendant herein from parading himself, claiming or holding himself out as a Odio – Ologbo of Ofagbe, pending the hearing and final determination of the Suit.
- Restraining the 8th Defendant herein from recognising, holding out or granting a Staff of Office to and or, in any way dealing with the 7th Defendant as the Odio-Ologbo of Ofagbe, pending the hearing and final determination of the Suit.
The motion was argued by the respective Counsel and in a considered ruling delivered as the 27th day of April, 1999, the trial Court refused the order for injunction sought and dismissed the application and discharged the order of interim injunction. This is what the trial Court held in dismissing the Appellant’s application:-
“Having regard to the above, the court is of the view that the plaintiffs have been using the process of this court by way of motion exparte for interim injuction in warding off other opponents in the past, without vigorously pursuing the matter to its logical conclusion.
Moreover, and more importantly, the plaintiffs by their showing in paragraph 11 of their affidavit in support of the motion papers had admitted that the 7th defendant had been installed the Odion-Ologbo of Ofagbe on 28/12/98. The grant of interlocutory injunction is no remedy to a completed action (See Anosike v. Gov. Imo/State (1987) 4 NWLR part 66 p. 663. On the whole, this application lacks merit and it must fail and it is hereby dismissed. The earlier order of this court, restraining the 7th defendant from parading himself as the Odio-Ologbo of Ofagbe is hereby rescinded. There will be cost of N500.00 for the 7th defendant for this application.
It is against this ruling that, the Appellant’s have now appealed to this Court. Four Original grounds of appeal were filed and two additional grounds of appeal were filed with leave of Court. The grounds of appeal without their particulars are hereby reproduced.
- The learned trial judge erred in law, when he refused to grant the order of injunction.
- The learned trial judge erred in law, in holding that there is no claim before the Court on which to base 2 the prayers sought.
- The learned trial judge erred in law, when he upheld the act of 7th Respondent in disobeying Court Orders.
- The Ruling is against the weight of evidence.
- The learned trial judge erred in law, when he held as follows:-
“The Court is of the view that the Plaintiff’s have been using the process of this Court by way of motion ex-parte for interim injunction in warding off other opponents in the past without vigorously pursuing the matter to its logical conclusion.”
- The learned trial judge erred in law, when he held that Plaintiff’s admitted that the 7th Defendant had been installed the Odio-Ologbo of Ofagbe on 28/12/98.
In compliance with the Rules of this Court, parties filed and exchanged briefs of argument. The Appellant’s brief settled by T.R. Ikpotor Esq. identified a single issue for the determination of the appeal viz:-
Was the refusal of the learned trial judge to grant an order of injunction a proper exercise of discretion?
In the 1st – 3rd Respondents brief settled by I. Ovwighorienta Esq. also identified a lone issue for determination of the Appeal thus, whether the learned trial judge was right in refusing to grant the interlocutory injunction sought by the Plaintiffs having regard to the facts and particular circumstances of this case.
In the 4th Respondent’s brief settled by Prof. A.A. Utuama, A.G. Delta State, also a lone issue was identified for the determination of the appeal viz, whether the learned trial judge judiciously exercised his discretion, when he refused to grant interlocutory injunction sought by the Appellants against the 3rd and 4th Respondents.
At the hearing of the appeal, learned Counsel, for the Appellants adopted his brief of argument, dated 17/1/02 and filed on the 21/1/02, and the Appellants reply brief filed on the 31/4/04, and urged us to allow the appeal. Learned Counsel for the 1st-3rd Respondents also adopted his brief of argument dated 14/5/03 and deemed filed on the 31/3/04 and asked us to dismiss the appeal. The learned Counsel for the 4th Respondent also adopted his brief of argument dated 3/12/03 and deemed filed on the 31/3/04 and urged us to dismiss the appeal. All the issues as formulated by the respective Counsel are virtually one and the same thing.
Whether the refusal to grant the interlocutory injunction was a proper exercise of judicial discretion. In the determination of the appeal, I will adopt the as formulated by the learned Counsel for the 1st – 3rd Respondents i.e whether the learned trial judge was right in refusing to grant the interlocutory injunction sought by the Appellants having regard to the facts and particular circumstances of this case.
Learned Counsel for the Appellant submitted that in an application injunctive remedy the judge has a discretion vested in him by law to decide the matter one way or the other, but that a liberty or privilege to exercise a judicial discretion does not mean that the discretion should not take account of what is fair and equitable under the peculiar circumstances of the particular case guided by the spirit of and principles of law citing ECHAKA CATTLE RANCH VS. N. A.L. B (1998) 56/57 LRCN at 3349. It was submitted that the law requires that the exercise of discretion must be in good faith uninfluenced by irrelevant considration and not arbitrarily or illegally or upon at misconception of the law or under a misconception of the facts citing the following cases in support; HOUTMAN GRACHT VS. ODOBA (1997) 50 LRCN 1291 at 1309; UNIVERSITY OF LAGOS VS. AIGORO (1985) ANLR 64; NTUKIDEM VS. OKO (1986) 5 NWLR (PT.45) 909; and NNEJI V. CHUKWU (1988) 3 NWLR (Pt.81) 184, I was also submitted that in ODUTOLA VS. KAYODE 14 LRCN at page 11, the Court stated conditions that an Appellant must establish in order to suceed in an application of this nature namely, a mistake of law, a disregard of principle, a misapprehension of the facts, a taking into account of irrelevant matters, on the ground that injustice could arise, on the ground that no weight or no sufficient weight has been given to relevant discretion and the ground that the discretion has not been exercised judicially refering to ODOSOTE VS. ODUSOTE (1971) ANLR 221. It was submitted further that the conditions enumerated above are present in the said case, and the Court was urged to hold that there has been a wrong exercise of discretion by the trial Court. It was also submitted that the learned trial judge considered irrelevant issues that were not before him as it was not avered by any of the parties, that any application was pending which has not been argued. It was also submitted that there was no evidence to support the finding by the Court that the Plaintiffs were using the Courts process in warding off opponents in the past without vigorously pursing the matter to its logical conclusion. That such findings are perversed and referred to the cases of KANO STATE OIL VS. KOFA (1996) 35 LRCN 365 at 393 and IVIENAGBOR VS BAZUAYE (1999) 70 LRCN 2256 at 2272. Learned Counsel urged the Court to hold that having taken into account this irrelevant matters in deciding the application the ruling dismissing the application should be set abide.
It was also argued for the appellants that what the Appellants sought before the lower Court was an order to the restrain the 3rd Respondent from parading himself, claiming or holding himself out as the Odio-Ologbo of Ofagbe, while the second prayer sought to restrain the Delta State Government from recognising, holding out or granting a Staff of Office to, or dealing with 3rd Respondent. That nowhere did the Appellants seek to restrain the installation of 3rd Respondent. Learned Counsel also reproduced paragraphs 11 and 12 of their affidavit in support of the application and submitted that no where did the Appellants contended that the 3rd Respondent was installed. The word ‘Sanction’ used cannot be taken to mean install. That the Appellants did not admit that the 3rd Respondent had been installed as Odio-Ologbo of Ofagbe. It was contended that such finding from the unchallenged affidavit evidence before the trial Court is an improper inference and a wrong exercise of discretion by the trial Court and urged the Court to allow the appeal.
For the 1st – 3rd Respondents, it was submitted that the learned trial judge was right in refusing to grant the interlocutory injunction sought by the Appellants having regard to the facts and special Circumstances of this case. I was submitted that interlocutory injuction is not a remedy for an act that has been completed or carried out and that as a matter of practice and principle, interlocutory injunctions are not granted as a matter of course, but entirely at the discretion of the Court, citing AYORINDE VS. A.G. OYO STATE (1996) 3 NWLR (Pt. 434) 20; ECHAKA CATTLE RANCH LTD VS. N.A. C.B. LTD (1998) 4 NWLR (Pt. 547) 526 at 537 and ACB LTD VS. AWOGBORO (1996) 3 NWLR (Pt. 437) 383 at 391 – 392. It was submitted that the Appellants have not shown what inconvenience or irreparable loss they would suffer if the injunctions sought were not granted. That there is also nothing to show from the totality of the affidavit evidence, what the Appellants would suffer, if the 4th Respondent be allowed to recongnise or grant Staff of Office to the 3rd Respondent. It was also submitted that the reliefs sought in the application did not relate to the substantive Suit as regards the 3rd and 4th Respondents, who were targets of the application, citing OYEYEMI VS. IREWOLE LOCAL GOVERNMENT (1993) 1 NWLR (Pt.270) 462 at 478 and DAEWOO (NIG) LTD VS. HAZCON (NIG) LTD (1998) 7 NWLR (Pt. 558) 438. On the submission that the learned trial judge took into consideration some extraneous matters, it was submitted that the Court has an undisputed power to look into the records and all the circumstances of the case and came to the conclusion that the Appellants had in the past obtained interim injunctions in 1984 and 1985, and without vigorously pursuing the matter to its logical conclusion. That the 3rd and 4th Respondents were only joined in the Suit by motion ex-parte on the 3/2/99, while the case has been pending since May, 1984. That in the same ex-parte motion there were interim Orders which were granted against the 3rd and 4th Respondents.
It was also submitted that it is untenable to suggest as the Appellants had put it, that 3rd Respondent had not been appointed or installed as Odio-Ologbo of Ofagbe, before the application for interlocutory injunction was argued. That by the combined effects of paragraphs 8, 9 and 12 of the Appellant’s affidavit in support and Exhibit ‘A’ it was clear that the 3rd Respondent had been installed the Odio-Ologbo of Ofagbe before the application for injunction was made on the 9/2/99. That the word “Sanction” simply means approve or ratify and that it is only that which has been in existence that can be approved or ratified. It was submitted that the acts which the Appellants are seeking to restrain had been completed. That the Appellants are not entitle to the equitable remedy of Interlocutor injunction.
For the 4th Respondent, it was submitted that injunction sought must relate to a claim before the court against the party to which the Order is directed to. It was submitted that equitable remedy of injunction is not available to the Appellant against the 3rd and 4th Respondents because the Appellant’s writ of Summons filed on the 29th May, 1984, and the further amended Statement of claim filed on the 28th day of March, 1991, do not disclose any claim against the 3rd and 4th Respondents, who were the only parties against whom the Appellants sought the orders of interlocutory injunction, against a party to whom no claim has been made by the Applicant, citing ADENUGA & ORS. VS. ODUMERU & ORS (2001) 5 NSCQR 148. It was submitted that the granting of an interlocutory injunction is predicated on a writ of Summons and the Amended Statement of claim, which makes no mention of the 3rd and 4th Respondents, and therefore do not disclose any cause of action against them citing TIDEX (NIG) LTD VS. NUPENG (1998) 11 NLWR (Pt. 573) 264.
It was further submitted that the learned trial judge properly exercised his discretion, when he made a finding of fact that sought to be restrained were completed acts. That paragraphs of the Appellants’ Affidavit in support, deposed to facts, which disclose that the 3rd Respondent has been installed and as the Odio-Ologbo of Ofagbe Community before this motion for injunction was filed on the 9/2/99. Learned Counsel urged the Court to hold that the lower Court has no jurisdiction to grant the interlocutory in junction sought and to dismiss the appeal.
In the Appellant’s reply brief, it was submitted that the Court should discontenance the Respondent’s Submission that the Appellants had not shown any irreparable loss that they will suffer, if the application is not granted as same was not canvassed before the lower Court, and the fact that there was no claim in the Substantive Suit against the 3rd Respondent, citing MKPEDEM VS. UDO (2000) FWLR 827; DWEYE VS. IYOMAHAV (1983) 8 SC 77, and ELENDU VS. EKWOABA (1998) 68 LRCN 4975. It was submitted that in the substantive suit the Appellants clearly sough therein to restrain the 1st Defendant, from installing any body from any other Ruling house or family as the Odio-Ologbo of Ofagbe. That they deposed to in paragraph 13 of the affidavit in support thereof, that any attempt to install the 3rd Respondent will threaten the peace of Ofagbe. It was further submitted that Exhibit A never stated that the 3rd Respondent had been installed as the Odio-Ologbo, of Ofagbe. It was submitted that it was his Bank that refered him as such and not the Appellants. It was also submitted that the prayer was for an order restraining the 3rd Respondent from parading himself as the Odio-Ologbo of Ofagbe, and the 4th Respondent from recognising him. That there was no prayer seeking to restrain the 3rd Respondent from being installed.
It is my humble view that the only issue for determination is whether or not, the learned trial judge judiciously exercised his discretion in refusing the application for injunction having regard to the facts and the Law to be considered and the circumstances of this case. In an application for interlocutory injunction, the first issue to be determined is whether there is a question of law or legal right or serious issue to be determined in the substantive action. There is no rule requiring an Appellant to establish the substantive action. There is no rule requiring an Appellant to establish Court is satisfied that his case is not fivilous or vexetious and that there is a serious question to be tried see KOTOYE VS. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (Pt. 98) 419 and OBEYA MEMORIAL HOSPITAL VS. A.G. OF THE FEDERATION (1987) 3 NWLR (Pt.60) 325 and AYORINDE VS. A.G. OYO STATE (1996) 3 NWLR (Pt. 434) 20 at 32.
An Interlocutory injunction may be granted in all cases, which it appears to the Court to be just and convenient to do so, but it is not normally granted as a matter of course. The applicant has a duty to satisfy the Court that in the special circumstances of his case, he is entitled, on the facts presented by him to the relief. The remedy is entirely discretionally and the governing principles, depending on the facts and the issue in a given case, admit some element of flexability. The discretion is however one that must be exercised judicially and judiciously. In the instant case; the Appellants contended that the learned trial judge took extraneous matters into consideration and refused the application sought it was contended for the Appellants that such extraneous matters like motions for interim injunction granted since 1984, not disposed of and the fact that the Appellants are using the process of the Court to stop Opponents without vigorously, pursuing the matter to its logical conclusion and also the fact that the 3rd Respondent had already being installed on the 28/12/98. That these extraneous issues weighed heavily in the mind of the trial judge and therefore failed to exercise his discretion judiciously. The 1st – 3rd Respondents contended that this argument is untenable given the peculiar circumstances of this case. That it was the Appellant’s case that the Court should look into the Court’s file and records and that the Court is also competent to do this. That the Appellants in their affidavit in support, relied on interim injunctions granted in the ease since 1984 and 1985 as deposed to in paragraphs 4, 6 and 7 of the affidavit in support of the motion, and that by looking at all these circumstances, made the trial Court to reach the conclusion that that it did in refusing the Application.
Also, for the 4th Respondent, it was argued that the remedy of injunction is not available to the Appellants against the 3rd and 4th Respondents because the Appellant’s writ of Summons filed on the 29th May, 1984, and further amended statement of claim filed on the 25th day of March, 1991, do not disclose any claim against the 3rd and 4th Respondents, who were the only parties against whom the Appellant sought the orders of interlocutory Injunction.
It is relevant and pertinent for a clear elucidation of the arguments of Counsel to state briefly the circumstances leading to the present application. On the 29th day of May, 1984, the Appellants instituted this Suit against five original Defendants, which did not include the present 3rd and 4th Respondent claiming inter alia in reliefs 2 and 7 thereof as follows:-
(2) A declaration that the Osifor House of Ofagbe is one of the Ruling Houses of Ofagbe, Ofagbe Sub-Clan, Isoko Local Government Concil Area to the Traditional Ruler Title of Bendel State of Nigeria Odion-Ologbo of Ofagbe.
(7) A permanent Injunction restraining the 1st Defendant Chief Oloku Okpogo, the Regent of Ofagbe sub-clan, his servants, agents or successors in title from installing anybody from any other Ruling House and or Family as the Odion-Ologbo of Ofagbe, other than a nominated or elected candidate from the Osifo Ruling House of Ofagbe, Ofagbe sub-clan, Isoko Local Government Conucil Area.
Sequel to a motion Exparte, the Appellants on the 30th May, 1984, a day after filing the Suit, obtained an order of Interim injunction against the said five Defendants. In 1986, upon an application by the Defendants to discharge the order of interim injunction, the Court refused to grant the Order and dismissed the application. The Court then affirmed the interim Order of Injunction. Pursuant to a motion ex parte, dated the 28th day of January, 1999, the Appellants obtained leave of the Court and joined 3rd and 4th Respondents in the Suit as the 7th and 8th Defendants respectively. Again, by another motion on notice dated the 9th day February, 1999, the Appellants now sought injunctive reliefs against the said 3rd and 4th Respondents which was dismissed by the trial Court and now the subject of this appeal.
It is important to note here that, after the 3rd and 4th Respondents were joined in the Suit as 7th and 8th Defendants, the Appellants did not amend their writ of Summons and their amended statement of claim to incorporate the names of the 7th and 8th Defendants, as the additional Defendants joined in the Suit. Now, considering the facts and circumstances of the case, was the learned trial judge’s finding that the Appellants have been using the process of this Court by way of motion Ex-parte for interim injunction, in warding off opponents in the past without vigorously pursuing the matter to its logical conclusion perverse in the circumstances of this case? I will answer the question in the negative. After the interim injunction was granted to the Appellants on the 30th of May, 1984, there was no effort put by the Appellant to make the injunction obtain permanent, i.e. pending the determination of the substantive Suit. Blacks Law Dictionary 6th Edition at page 814 defines “Interim” to mean “In the meantime, meanwhile; temporary; between.” By their very nature, injunctions granted on Ex-parte applications 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, or until the Respondent can be put on notice. The rational for an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the Other Side on notice would or might cause irretrievable or serious mischief. Such injunctions are for cases of real urgency, with emphasis on ‘real.’ See KOTOYE VS. CBN (1989) 1 NWLR (PT.98) 419. An injunction is a serious matter and must be treated seriously. See UNIBEZ (NIG) LTD VS. CBCL LTD (2003) 6 NWLR (Pt.816) 402. It is a preservatory measure taken at an early stage in the proceedings. See AL CATEL KABEMETAL (NIG) PLC VS. OJUEGBELE (2003) 2 NWLR (Pt. 805) 429.
By virtue of Order 8 Rule 11 of the High Court Civil Procedure Rules, the life span of the ex-parte injunction should not normally be more than seven days, after which the party affected by the order may have applied for the order to be varried or discharged. No order made Ex-parte shall last for another seven days or such further time as the Court shall allow after the application to vary or discharge it had been concluded. And if a motion to vary or discharge an ex-parte order is not taken within seven days of its being filed, the ex-parte order shall automatically lapse.
In the instant case, the Appellant after obtaining the Order in May, 1984, did not make any move to file a motion on notice. The Defendants then sought to vacate or discharge the interim injunction vide a motion on notice. Their application was dismissed and instead, the Court reaffirmed the interim order made on the 30/5/84. That was vide a ruling of the Court, delivered on the 23rd of October, 1986. Again, the Appellants sequel to a motion Ex-parte dated the 28th January, 1999, joined the 3rd and 4th Respondents in Suit as 7th & 8th Defendant and also obtained injuctive Orders against them. Considering the facts and peculiar circumstance of this case, the learned trial judge, was right to have observed as he did in his Ruling that the Appellants have been using the process of this Court by way of motion ex parte for interim injunction in wording off other opponents in the past without vigorously pursuing the matter to its logical conclusion.”
Courts must ensure that an ex-parte order of injunction is not allowed to over stay. Delay or in-action is not tolerated by the Court. Counsel to the party that obtained on interim order should move past haste to see that all that needs to be done is done in order not to make it look as if getting the exparte injunction was all that concerned him. Such Counsel must not lose sight of the fact that an extraordinary jurisdiction has been exercised in his clients favour, the purpose for which is to grant the Plaintiff’s a temporary very temporary relief. A few days, or perhaps until further order upon hearing of the motion on notice. But when a situation is created making the further order unlikely to come soon and for which the Plaintiff cannot avoid blame or being suspected, then the life of the Ex-parte Order of injunction is unduly prolonged. In such circumstances, the Court may be justified to intervene. In the instant case, the learned trial judge was right to intervene to discharge the interim Order made in 1984, as the Appellant had shown no intention of taking the matter further, by moving from the stage of the Ex-parte order, rather, he wanted to preserve it. See S.A.P. (NIG) LTD V. CBN. (2004) 15 NWLR (Pt. 897) 665 at 689; OGBONNA V. NYURTW (1990) 3 NWLR (Pt. 141) 696. The jurisdiction to vary or discharge an order made ex-parte is almost always vested in the Court that made it.
It might be by the same judge or another judge of the same Court. S.A.P; (NIG) LTD VS. C.B.N. (supra) at 688. The learned trial judge was therefore, right to intervene and his observation cannot be said to be perverse in the circumstances of the case.
Now, this brings me to the second arm of the argument, that when the 3rd and 4th Respondents were joined in the Suit as 7th and 8th Defendants by a motion Ex-parte, dated the 28/1/99, the Appellants have failed or neglected or did not deemed it necessary to amend their writ of Summons and the Statement of claim to reflect the joinder: It was argued that the Court is without jurisdiction to grant an injunction against a party to whom no claim has been made by the Appellant. Where a Court is asked upon an interlocutory application to make an order, the Court must satisfy itself that it has the power to make, at the conclusion of the hearing the same order, it is asked to make upon the interlocutory application. See ARJAY LTD V. A.M.S. LTD (2003) 7 NWLR (Pt. 820) 577, meaning, for an interlocutory injunction to be rightly ordered, it must have connection with the subject matter in litigation. In the instant case, when the Appellants obtained leave to join the 3rd and 4th Respondent in the Suit as the 7th and 8th Defendants, they did not amend their writ of Summons and their amended statement of claim to reflect the said joinder. Thus, the Appellants writ of Summons and the amended statement of claim did not disclose any claim against the 3rd and 4th Respondents inrespect of which an order of injunction can be granted against them. The claim of the Appellants as endorsed on the writ of Summons discloses no right known to law or equity against the 3rd and 4th Respondent. It was argued for the Appellant that the Appellants relief 7 in the writ of Summon sought to restrain the 1st Defendant, from installing anybody from any Other Ruling House and or family as the Odio-Ologbo of Ofagbe. The injunction sought as contained in the writ of Summons is against the 1st Defendant in the suit and not the present 3rd and 4th Respondent against whom the injunction sought is directed. It is now well settled that, any application for relief subsequent to the claim before the Court shall be within the purview and scope of the claim. This is because a Plaintiff is limited by his claim as expressed in the writ of Summons and statement of claim. Any departure from the claim so endorsed and to make a new claim gives rise to a new cause of action in respect of which the jurisdiction of the Court has not been invoked by the institution of an action. The jurisdiction of the Court is determined by the claim of the Plaintiff. That is why any ancillary relief must fall within the claim in the substantive action ADENUGA & ORS VS ODUMERU & ORS (supra) at 159. From the Appellants writ of Summons and the amended statement of claim, there was no claim against the 3rd and 4th Respondents.
A Court could not have jurisdiction to grant an injunction, when the relief of injunction sought is not in respect of a claim before the Court or parties not joined in the Suit. In order to determine when an action is instituted for, all the Court is required to do is to look at the writ of Summons and the Statement of claim. This is because it is the claim of the Plaintiff, which determines the jurisdiction of the Court to entertain same. In the instant, case, the Appellant’s writ of Summons and the statement of claim do not contain the name of the 3rd and 4th Respondents as persons joined in the Suit, there is therefore, nothing before the Court in respect of which the Court can exercise its discretion over the 3rd and 4th Respondents. A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the Defendant arising out of an invation, actual or threatened, by him of a legal or equitable right of the Plaintiff for the enforcement of which the Defendant is amendable to the jurisdiction of the Court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the Status quo, pending the entertainment by the Court of the right of the parties and granting to the Plaintiff of the relief to which the cause of action entitles him, which mayor may not include a final injunction. See DAEWOO (NIG) LTD VS. HAZCON (NIG) LTD (1998) 7 NWLR (Pt. 558) 438 at 448-449. In effect, an interlocutory injunction must have a connection with reliefs sought and the parties before the Court. In the instant case, there is no relief of injunction against the 3rd and 4th Respondents in the writ of summons and the amended Statement of claim and I so find. See OYEYEMI VS. IREWOLE LOCAL GOVERNMENT (1993) 1 NWLR (Pt.270) 462 at 478.
It was also argued that the learned trial judge properly exercised his discretion, when he made a finding of fact that the acts sought to be restrained were completed acts as disclosed by the Appellants in their motion in support of the application, that the 3rd Respondent has been installed and Sanction as the Odio-Ologbo of Ofagbe, before the motion for interlocutory injunction was filed. The Appellants paragraphs 8, 9, 10, 11 and 12 of the Appellants Affidavit in support of the motion filed on the 9th day of February, 1999, read as follows-
- That sometime in 1997, one Idiodi, approached the Plaintiffs under the guise of settling the dispute between the parties and the Plaintiffs agreed that he proceed with the move.
- That unknown to the Plaintiffs, he (Idiodi) only wanted to instal as Odiologbo, his brother-in-law, one Matthew Ikpoku, who is the 7th Defendant herein.
- That on the 28th of December, 1998, the said Idiodi accompanied by of military personnel, came to Ofagbe, read out his decision that Osifo is not a ruling family to Ofagbe and that Oshia had produced on Odiologbo in the person of Egefe Ekorie and that it is the turn of Orie to do so and went on to sanction Matthew Ikpoku herein as Odiologbo of Ofagbe.
- That the said Matthew Ikpoku has since then been parading himself as the Odiologbo of Ofagbe and efforts are on to secretly instal him as an Odiologbo. Attached as Exhibit ‘A’ is a letter written by his bank to a member of our family, one Paul Ireh.
It was contended by the Appellant the relief sought is to restrain the 3rd Appellant from parading himself, claiming or holding himself out as the Odio -Ologbo of Ofagbe and for the 4th Respondent, i.e. the Delta State Government from recognising, holding out or granting a Staff of Office or dealing with the 3rd Respondent. That there was no order to restrain the installation of the 3rd Respondent, as contended by the Respondents and found by the trial judge.
Be that as it may, having found that there is no claim disclosed against the 3rd and 4th Respondents on the Appellant’s writ of Summons and the amended statement of claim, the Appellants have no basis in law to restrain the 3rd and 4th Respondents. It will only amount to academic exercise to venture and consider this issue. The Court is simply without jurisdiction to grant the interlocutory injunction sought because the Appellants writ of Summons and the further amended statement of claim do not disclose a claim against the 3rd and 4th Respondents, who were the Intended targets of the motion for interlocutory injunction.
Based on the foregoing, it is my humble view that this appeal lacks merit and it is hereby dismissed. The costs is assessed and fixed at N3,500.00.
Other Citations: (2005)LCN/1733(CA)
