Daniel I. Ushie V. Asuquo Asuquo Edit & Anor (2009)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
The Appellant initiated an action against the Defendants at the High Court of Cross River State, sitting at Calabar by way of a Writ of Summons dated 19/7/06 and filed on the same date. Three reliefs were sought and consequent upon that, the Plaintiff filed a Motion on Notice, on that same date, praying the Court for an order of interlocutory injunction against the Defendants.
It must be pointed out that there is no disclosure on the record of appeal before us that pleadings between the parties had been filed and exchanged.
So, it clear on the record that the Defendants have not filed their Statement of Defence let alone counter-claiming for a declaration of title over the said piece of parcel of land situated in Ekorinim Town, Calabar. They, also, did not commence a separate action for a declaration of title and an order of perpetent injunction against the Plaintiff in respect of the same parcel of land. Nevertheless, without any counter-claim or a separate suit which was consolidated with the Plaintiff’s action, the Defendants, on the 21st July, 2006, filed a Motion on Notice in the same Suit No. HC/193/2006 instituted by the Plaintiff and then prayed for an order of interlocutory injunction restraining the Plaintiff, his agents, servants and privies from further act of trespass by
continuity to building on the Defendants land situate at Ekorinim and shown in Plan No. IJCR 1159 prepared by Surveyor T. Johnson pending the hearing of the substantive matter.
On being served with the said Motion, the Appellant, via his Counsel, filed a Notice of Preliminary Objection on the 3rd July, 2006 on the ground that the lower Court lacked the jurisdiction to entertain the said Motion on Notice, in that it was incompetent and constituted an abuse of Court process.
Thereafter, on the 31st August, 2006, the learned trial Judge was addressed by the respective Counsel to the parties on the Preliminary Objection raised by the Plaintiff to the hearing of the Defendants’ Motion on Notice for interlocutory injunction.
The record of appeal, at p. 41, last paragraph, shows that at the conclusion of the address, learned Counsel for the Appellant, T. Udo Esq., conceded to both motions for interlocutory injunction filed by the parties respectively being consolidated. Later, in the same proceedings of that date, learned Counsel for the Defendants urged upon the Court to make an interim order of injunction restraining both parties from entering the land.
The learned trial Judge in his wisdom and in the exercise of his discretion made the order sought, ie, an order of interim injunction restraining both parties from engaging in any activities on the said land.
Being irked and in total disagreement with the orders made by the learned trial Judge for the said 3rd August, 2006, the Appellant file his Notice of Appeal that was pivoted on three grounds. Pursuant to that, the Appellant filed his Brief of Argument on 9/8/07.
As a result, the Respondents filed a document captioned, Preliminary Objection which, presumably, is their Notice of Preliminary Objection, and, their Respondent’s Brief of Argument on 8/10/07, in which was also proffered the Respondents’ arguments in respect of the preliminary objection. The following three issues were presented by the Appellant’s Counsel in the Appellant’s Brief for consideration;
“(1) Whether it is not wrong for the lower Court without any materials placed before it for consideration of the grant of interim injunction to suo motu order interim injunction against both parties in the case pending the determination of the two motions on Notice filed by both parties without calling on the parties or their Counsel to address it knowing that such an issue as interim injunction would affect the interest of the parties.
(2) Whether the lower Court in ordering consolidation of the two motions filed by the plaintiff (now Appellant) and the Defendants (now Respondents) for interlocutory injunction exercised its discretion judicially and judiciously, when there was before it for consideration a preliminary objection to the jurisdiction of the Court to entertain the motion brought before it by the Defendants for interlocutory injunction.
(3) Whether the lower Court in the circumstances of the preliminary objection to its jurisdiction to entertain the motion of 29/7/2007 filed by the Defendants for interlocutory injunction, did not lack jurisdiction to:
i. Order consolidation of the two motions for interlocutory injunction.
ii. Grant an interim injunction against both parties.
The Respondents in their Brief adopted all the issues formulated by the Appellant for determination. The Appellant in response to the Respondents Brief, filed a Reply Brief.
In respect of issue NO.1, learned Counsel for the Appellant, Emmanuel B. Udo Esq., contended that the trial Court, having raised the issue of grant of interim injunction suo motu, ought to have invited the parties or their Counsel to address on it He stressed that none of the parties filed any ex parte application for grant of interim injunction before the Court to have warranted the order made by the Court meaning there was no material whatsoever upon which the Court so acted. He cited the cases of ACB vs. Losada (Nig) Ltd (1992) 2 NWLR Part 225 p. 572 at 577 ratio 9, Martchem Industrial Ltd vs. M.R. Kent West Africa Ltd (2005) 22 NSCQR PT 11, 1037 at 1041 ratio 8, Alli vs. Alesinloye (2000) 7 LRCN 742 at 756 ratio 19 and Kotoye vs. Central Bank (1989) NWLR Part 98 P. 419.
On the second issue, he submitted that there was no application before the trial Court for the two motions for interlocutory injunction respectively filed by the two parties to be consolidated, and, that the Court was totally in error when it made an order consolidating them.
He stated that the preliminary objection filed by the Appellant at the trial Court Challenging the jurisdiction of the Court to entertain the Respondents’ motion for interlocutory injunction had been duly argued at the trial Court, but without determination, before the order of consolidation was made. Here referred to the case of Ezenwosu vs. Ngonadi (1988) 3 NWLR Part 81 p. 163 at 163 ratios 18 and submitted that it is the law that a Court must deal with an issue brought before it. He contended that after taking the argument of Counsel, it was incumbent on the Court to give a ruling on the preliminary objection challenging its jurisdiction first. He cited the cases of Ebhodaghe vs. Okoye (2005) 1 FR 101 at 103 ratio 1 and Central Bank vs. Manexport S. A. (1987) 1 NWLR Part 47 p. 86 and submitted that the issue whether the Court has jurisdiction to entertain the Respondents’ motion for interlocutory injunction should have been disposed of.
On the third issue, which is similar in contents to the second issue, Counsel reiterated his submissions with regard to issues Nos. 1 and 2 and referred to Matari vs. Dangaladima (1993) 2 SCNJ 122 at 124 ration 1 and then prayed that the ruling of the lower Court consolidating the said two motions of 19/7/2006 and 24/7/2006 and the order of injunction against both parties in the case be set aside.
In his reply, learned Counsel for the Respondents, F. O. Onyebueke Esq., stressed that the materials upon which the learned trial Judge based the order of interim injunction were contained in the said two motions before the Court bordering on the allegation of use of armed thugs and armed Policemen coupled with his own application before the lower Court for an interim order to be made. He cited the cases of the Praying Band of the Sacred Society of Cherubim and Seraphin church & 3 ors vs. Natalie Elien Udokion (1991) 3 NWLR Part 182 p. 646 at 772 ratio 1, the Registered Trustees of to the Apostolic Church vs. Mrs Emmanuel I. Olowole (1990) 6 NWLR Part 158 p. 514, Order 33 Rule 1 (1) and 2 (1), Nwanosikeand Udosen (1993) 4 NWLR Part 290 p. 684 at 687, Nasco Mgt Ser. Ltd and A.N. Amaku Trans. Ltd (2003) 2 NWLR Part 804 at 299 ratio 10 and submitted that the learned trial Judge exercised his discretion judiciously and judicially and was right in granting the interim order of injunction to preserve the property in question.
In respect of issues Nos. 2 and 3, learned Counsel, raised a preliminary objection to the competency of Ground 1 in the Appellant’s Notice of Appeal from which the two issues were presumably formulated. He contended the said ground one complained of both ‘errors in law’ and ‘misdirection’. He referred to Order 3 Rule 2 (2) of the Court of Appeal Rules, 2002 which permits a ground of appeal that alleges or complains of either “error in law” or “misdirection” or “error in fact” and the cases of Ratimi vs. Faforji (1999) 6 NWLR Part 606 p. 305 at 309 ratio 6 and Dahiru and Kamale (2005) 9 NWLR 929 p. 8 at 21 ratio. He submitted that a ground of appeal cannot be both of misdirection and error in law, and, a ground of appeal that alleges two at the same time is liable to be struck out as being incompetent, and he urged the Court to so hold.
Learned Counsel further contended that issues 2 and 3 did not arise from the grounds of appeal in that the challenge of the order on the ground that it was made when there was a pending preliminary objection was not covered by any of the grounds. Counsel further stated that the orders for consolidation and that of interim injunction were made at the conclusion of submissions of both Counsel on the said preliminary objection and, too, on the promptings of the Appellant’s Counsel in order to save time. He contended that by so, doing, the Appellant’s Counsel abandoned the arguments. He stated that the Appellant’s Counsel cannot turn round to attack the learned trial Judge that his preliminary objection on jurisdiction was not considered. He then argued that by section 151 of the Evidence Act, the Appellant’s Counsel is estopped from raising the issue.
Replying, Appellant’s Counsel submitted that issues Nos. 2 and 3 flow from grounds 1 and 3, and, when the particulars given in respect of ground No. 1 are read together with the said ground, then the complaint against the ruling will be properly perceived. He said that it is the issue formulated that is argued but not grant of appeal. He referred to Chief Ejawhomu vs. Edok Eter Mandilas Ltd (1986) 5 NWLR Part 30 p. 1 and submitted that issues raised must be formulated within the parameters of a ground of appeal and the ground must be against the judgment of Court against which the appeal is lodged. He stated that issues 2 and 3 met the said conditions.
Further, Counsel contended that the argument of the Respondents’ Counsel that ground of appeal No. 1 contains error in law and misdirection and therefore incompetent, is based on technicalities. He said the law is, that consideration as to the competency of the ground of appeal is not as to form but substance. He cited the case of Hambe vs. Hueze (2001) 84 LRCN p. 445 at 459 on (2001) 4 NWLR Part 703 p. 372 and urged that the argument of Counsel be discountenanced.
With regard to the allegation that he abandoned his argument on the preliminary objection, Counsel submitted that such assertion was not supported by the contents of the record of appeal as there was no place, it was recorded that the Plaintiff’s Counsel abandoned his preliminary objection.
He further stated he did not urge on the Court below to consolidate the two motions. He stressed that by the trial Court stating that he (the Appellant’s) Counsel conceded consolidating the two motions, the natural inference will be that somebody else had made to the application for consolidation before he conceded.
Since the Respondents raised a preliminary objection to the competency of ground 1 of the Appellant’s grounds of appeal and the fact of issues Nos. 2 and 3 having not been formulated from any ground of appeal, our justice system demands that the said objection be tackled first so as to ascertain the fate of the appeal, whether it will survive and be determined on the merits or be trashed at the onset.
It is the Respondents’ Counsel’s contention that ground 1 of the Appellant’s ground of appeal having contained the two phrases “error in law” and ‘misdirection’ at the same time is therefore incompetent and ought to be struck out.
Counsel, in addition, relied on the decision in Dahiru vs. Kamale (2005) 9 NWLR Part 929 p. 8 where Ogbuagu, J.C.A, (as he then was) held that it is settled law that a ground of appeal which alleged both error in law and misdirection or error in law and on the fact, (as appears in grounds 4) at the same time, is incompetent.
I must, however, with due respect, point out that the above expression seems to diverge greatly from the exposition of the law made by the Supreme Court on the same issue. See Hamde vs. Hueze (supra) cited by the Appellant’s Counsel, Sosanya vs. Onadeko (2005) 8 NWLR Part 926 p.185 and Stirling Civil Eng. (Nig) Ltd vs. Yahaya (2005) 11 NWLR Part 935 p.181.
In Hambe vs. Hueze (supra), it was held that on the issue whether a ground of appeal alleging error in law and misdirection upon the facts is incompetent; Ogundare, J.S.C at p. 385 said:
“This issue has recently been resolved by this Court in Aderounmu & Anor vs. Olowu (2000) 2 SCNJ 180, (2000) 4 NWLR Part 652, 253 at 265. It is there decided that a ground of appeal alleging error in law and misdirection in fact is not thereby incompetent if it otherwise complies with the rules of Court requiring that a ground of appeal be not vague or general in terms (save what is generally known as the omnibus ground) and discloses a reasonable ground of appeal such that the respondent is given sufficient notice of the precise nature of the Appellant complain.”
Furthermore, Tobi, J.S.C, in Sosanya vs. Onadeko stated thus:
“The Court should not look at the expressions” error in law” and “misdirection” in watertight compartments or closets which must never be contained in a ground of appeal. They could in some situations and they could not in some other situations. The Court should examine the totality of the ground of appeal to see whether apart from, or outside the meeting of the two expressions, the ground of appeal contains sufficient complaints about the judgment to the adverse party to the extent that the adverse party is not put in any speculation or conjecture about what he is going to meet in the appellate Court. A strict and rigid rule at dichotomizing between “error in law” and “misdirection” in all grounds of appeal and for all times will be an artificiality with no practical substance in adjectival law and the wider dimension of the administration of justice.”
It is clear as crystal that by the Supreme Court decisions in Hambe vs. Hueze (supra) and Sosanya vs Onadeko (supra), the argument put forward by the Respondents’ Counsel in this respect is baseless. A ground of appeal does not automatically become incompetent by mere usage of the phrases “error in law” and “misdirection” at the same time in couching the same. Where the complaint in a ground of appeal is clear and unambiguous and no rule of Court is violated, the ground of appeal should be regarded as competent. I have thoroughly examined ground No. 1 of the ground of appeal and, the particulars given in respect thereof. It is undoubtedly succinct, precise, clear and unambiguous.
Accordingly this limb of the Respondents’ objection is hereby overruled.
The second limb of the Respondents’ Counsel’s argument is that if the ground of appeal is struck out, then issues NO.2 and 3 would not have been based on any ground. This will now be irrelevant since ground NO.1 was not struck out, but found to be in order.
However, learned Counsel further argued that the Appellant’s Counsel’s contention that the said order of interim injunction was made when there was a pending Preliminary Objection, was not cover by any ground at all.
It is trite law that a party who wishes to rely on any ground of appeal in an appeal must raise such ground specifically and clearly as a ground of appeal in his notice of appeal or cross appeal. He must not raise it as a particular to a ground of appeal because, particulars of a ground of appeal are complements to and dependent on the ground of appeal. Consequently, once particulars of a ground of appeal speak a different language outside the contemplation of ground of appeal, they are no more particulars of relevant ground and go to no issue. See Anammco vs. First Marina Trust Ltd (2000) 1 NWLR Part 640 p. 309. The purpose of a ground of appeal is to give to the Respondent notice of the exact complaint the appellant has against the decision. Therefore, a ground of appeal should be drawn up with the greatest legal skill, accuracy, elegance and expertise which a solicitor must muster. Particulars of error to a ground of appeal must flow from the ground of appeal and must support it. Particulars not so related are incompetent and ought to be disregarded. If all the particulars to a ground of appeal are unrelated to the ground, the latter is incompetent and ought to be struck out. See, also Cross River Basin & Rural Development Authority vs. Sule (2001) 6 NWLR Part 708 p. 194.
In the present appeal, it seems clear that particulars Nos. 2, 9 and 10 which centered on the Notice of Preliminary Objection not mentioned in any form in ground NO.1 of the grounds of appeal, are totally unrelated to the said ground. In the light of the decision in Cross River Basin & Rural Development Authority vs. Sule (supra), particulars Nos. 2, 9 and 10 to the ground NO.1 of the grounds of appeal, and, all the arguments in the brief relating thereto as advanced under issue NO.1 for determination are hereby discountenanced. I will now turn to the Appellant’s issue No. 1 as it were properly formulated from grounds Nos. 1 and 2 of the grounds of appeal.
The question is,” whether it is not wrong for the lower Court without any materials placed before it for consideration of the ground of interim injunction to suo motu order interim injunction against both parties in the case pending the determination of the two Motions on Notice filed by both parties without calling on parties or their Counsel to address it knowing that such an issue as interim injunction would affect the interest of the parties.”
At this stage it is necessary to examine the record of appeal to ascertain how the said order came about. The record of appeal at p. 42 depicts inter-alia the following:
“Onyebueke Esq.
Now that the motion are before the Court and parties served and matter ripe for arguments, we pray the Court to use its discretion and in the interim the parties should stay off the land pending the determination of the interlocutory application for an order of injunction so that parties may not use things against each other in respect of the land.
COURT:-
Based on the consent of Counsel on both sides, the Plaintiff’s application for interlocutory injunction dated 19/7/06 and the defendant’s application for interlocutory injunction dated 24/7/06 are hereby consolidated and shall be heard together and the matter of interlocutory injunction determined pending the main trial. The suit is adjourned to the 9th day of October, 2006 for arguments. To avoid any problems between the parties in respect of the property in dispute, it is hereby ordered that both parties shall cease any activities on the said land. For now and stay on the land till the interlocutory application is heard and determined. This is the order of this COURT.”
It is glaring on the record, that it was learned Counsel for the Respondents, who suggested the idea to the Court by subtly praying for it. Strangely as it is displayed on the record, the trial Court did not seek for the Appellant’s Counsel’s opinion in that regard. She proceeded to make the order of interim injunction restraining both parties without stating the principles upon which it was based or what informed her opinion to have so ordered.
It must be emphasized that an application for an injunctive order, whether interim or interlocutory, is equitable in nature and as such the Court is required to ensure that all conditions for its grant are satisfied. The Court cannot grant such an order if it is unaware of the facts and antecedent of the case especially where it has doubt about the applicant’s right or the nature of the subject matter.
Interim injunction is usually granted:
(1) to preserve the status quo until a named facts, or until a further order, or until an application or notice for interlocutory injunction is heard;
(2) in a situation of real urgency to preserve and protect the rights of the parties before it from destruction by either of the parties;
(3) during the hearing of a motion on notice for interlocutory injunction when it is shown that an irretrievable mischief or damage may be done before the completion of the hearing of the motion on notice;
(4) to avoid irretrievable mischief or damage when due to the pressure of business of the Court or through no fault of the applicant, it is impossible to hear and determine the application on notice for interlocutory injunction.
In the instant case, not only that the trial Court made an interim order as sought by the Respondent, it was made restraining both parties for entering upon the land, without stating the circumstances and principles that swayed it in so doing.
Although, in Ezeilo vs. Chinwuba (1997) 7 NWLR Part 511 p. 108, it was held that an order of injunction whether interim, interlocutory or perpetual, must be large enough to cover not only the entire dimension or circumference on the land in dispute but, also, what it is naturally capable of being put in use. Tobi, J.C.A. (as he then was) said that a trial Judge could go that far as the omnibus prayer reasonably allows him within the restrictive adjectival rules of foreseeability.
Where the competing equities of the parties are equal, it is not the first in time that should prevail, who is invariably the Applicant, rather, it will meet the justice of the case or it will be in the interest of justice to restrain both parties, for instance, where a trial Judge finds from the facts of the case that the Defendant or Respondent was equally in a position to file the same action, followed by the same application for interlocutory injunction, he is on a very good ground to restrain both sides.
In the instant case, the learned trial Judge granted the interim injunction sought by the Respondents, without giving the Appellant’s Counsel the opportunity to address her on the need for the interim order, without giving the reasons therefore; and stating the circumstances that warranted the grant of the interim injunction. She did not state that she perused the case file and the affidavit evidence of the parties and found as a fact that both parties had equitable interests in the land to be protected and preserved. It seems clear in the circumstance, that the interim injunction was granted on wrong principle of law.
It should be noted that interim injunction is never granted by mere asking, there must be some materials before the Court and the Court has to be satisfied based on those materials which it has to disclose. The Appellant’s Counsel was not given an opportunity at all to say a word about it since the Respondents did not file any ex parte application for the same.
One basic requirement of natural justice is that a party should be given an opportunity to state his case without let or hindrance. The rule of audi alteram parterm postulates that the Court must hear both sides at every material stage of the proceedings before handing down a decision. It is a rule of fairness and a Court cannot be fair unless it considers both sides of the case as may be presented by the parties. If any of the parties is refused or denied a hearing or is not given an opportunity of being heard, such hearing cannot qualify as a fair hearing under the audi alteram partem.
When persons who are entitled to be heard before an order of Court is made are not heard, such persons, by operation of section 36 (1) of the 1999 Constitution are not bound by any order made against their interest because the order is null and void, it does not matter that the same decision would have been reached if the persons had been heard. See Salau vs. Para-Koyi (2001) 13 NWLR Part 731 P. 602.
The learned trial Judge was therefore wrong in granting the order of interim injunction without allowing both Counsel address her on the need and implications of the same based on the materials presented by them in their respective motions before the Court. She did not disclose the facts which informed her mind to have granted the interim order and the principles upon which the decision was based.
Accordingly, issue NO.1 is hereby resolved in favour of the Appellant.
As for issues Nos. 2 and 3, they will be struck out as they cannot effectively be resolved without relating them to the issue of preliminary objection raised by the Appellant, but, which, was not complained against in any matter nor mentioned in the Notice and Grounds of Appeal. Issues Nos. 2 and 3 are hereby struck out having not been fully supported by any of the grounds of appeal.
Consequently, this appeal is hereby allowed in part. The order of interim injunction made by the learned trial Judge on the 3rd August, 2006 is hereby set aside. There will be costs to the Appellant against the Respondents which I assessed and fixed at N20,000.00.
Other Citations: (2009)LCN/3209(CA)
