Emmanuel Urhobo & Anor V. Major General B.i. Oteri & Anor (1998)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
This is an interlocutory appeal against the ruling of Awala J. of the High Court of Justice of Delta State sitting at Warri and delivered on 2-12-1997. The appellants who were the plaintiffs by a writ of summons filed suit No. W/399/96 against the respondents as the defendants at the court below and claimed mainly declaratory reliefs and injunction. The writ of summons accompanied by a motion ex-parte and a motion on notice for interim and interlocutory injunction were filed on 23-12-1996 at the trial court. The ex-parte motion for interim injunction pending the determination of the motion on notice for interlocutory injunction was granted by Dorubo Narobor J. of the Warri High Court on the same 23-12-1996 while the motion on notice was adjourned for hearing on 6-1-1997 but remained unheard up to today for reasons which are not apparent from the record of this appeal.
Meanwhile, pleadings were duly filed and exchanged between the parties.
The respondents as defendants in their statement of defence paragraphs (3) raised points of law alleging that the appellants as plaintiffs had no locus standi to institute the action which according to the respondents disclosed no cause of action. While the appellants’ motion on notice for interlocutory injunction and the suit itself were awaiting a date for hearing, the respondents filed a motion on notice on 5-2-1997 asking that the points of law raised in their statement of defence be set down for hearing. Before a date could be fixed for the hearing of this motion, the appellants filed another motion on notice on 1-2-1997 asking the lower court to restrain the respondents’ counsel from appearing for them, set aside all the processes filed by him and stay further proceedings in the matter. This motion was heard and dismissed by the lower court on 25-2-1997. The appellants were granted leave to appeal against this ruling but their application for stay of further proceeding pending appeal was heard and dismissed by the lower court on 29-5-1997. While the substantive suit, the appellants’ motion for interlocutory injunction and the respondents’ motion to set down the points of law raised on the application of the appellants on 26-6-1997, the entire suit was transferred from Narohor J. to Awala J. for hearing and determination.
However by a motion on notice dated 17-11-1997, the appellants again applied for the joinder of the Attorney-General of Delta State and the Chief Registrar of the High Court of Justice, Delta State as co-plaintiffs and also asked for stay of further proceeding in the suit pending the determination of the motion on notice. When this motion came up for hearing before Awala J. on 2-12-1997, the appellants’ motion for interlocutory injunction filed since 23-12-1996 and the respondents’ motion to set down the points of law raised in their statement of defence for hearing filed on 5-2-1997, were also on the list for hearing.
Learned counsel on both sides then addressed the lower court on the issue or which of the motions should be heard first. While the learned counsel to the respondents contended that the respondents’ motion to set down the points of law raised in the respondents’ statement of defence should be taken first and in the alternative, the interim order of injunction granted to the appellants since 23-12-1996 should be discharged, the learned counsel to the appellants insisted that the appellants’ motion for joinder dated 17-11-97 should be taken first. In a short ruling, the learned trial Judge decided that the respondents’ motion fur the dismissal of the appellants’ suit should be taken first. The ruling reads:
“It is correct that where there are two applications one constructive and the other destructive, the constructive one should be taken first but this is grounded on the equity of the case. It is not equitable in this instance to take the constructive one first because the parties sought to be joined do not show interest in the case, they are absent.
Secondly, the court usually lean in favour of what will save costs and time. Accordingly I hold the view that the motion for dismissal be taken first to save costs and time.”
The learned counsel to the appellants who did not expect this ruling the way it was pronounced by the lower court, applied for an adjournment of one week. The application was opposed by the learned counsel to the respondents who later conceded the adjournment if the interim order for injunction were discharged. The lower court however refused the application for adjournment and proceeded to set down the respondents’ motion for dismissal for hearing and determination forthwith.
There and then, counsel to the appellants applied to he discharged from the case in the absence of an adjournment. Counsel to the respondents had no objection to the application for withdrawal from the case hut conceded to an adjournment if the order for interim injunction were to be discharged. The learned trial Judge in his ruling not only discharged the learned counsel for the appellants from the case but also conceded to the application of the learned counsel the respondents in setting aside the interim order of injunction of 23-12-1996 and the application for adjournment. The short ruling reads:
“”Mr. Akpomudje is discharged from this case on his application.
I agree with Mr. Osaze Uzzi that an interim order is not expected to last this long – one year – While several attempts are made by the holder to further prolong the hearing of the case. This is not fair. Interim order is expected to be used as a shield but not as a sword, to protect the res of the action. Where the party in whose favour the order is made is doing all he can to frustrate the hearing of the interlocutory motion on notice and the substantive action itself it is only fair and proper to discharge it. He who holds equity must do equity. Accordingly the interim order dated 23-12- 96 is discharged.
I make no order as to cost. The case should be adjourned for further hearing.
Court: This case is adjourned to 26/2/98 for hearing of the defendants’ motion for dismissal.”
The appellants who are not happy with the decision or the lower court to hear the respondents motion for dismissal first and the discharge of the interim order of injunction of 23-12-1996, has appealed against the decisions. The appellants notice of appeal contains 3 grounds of appeal from which 3 issues were formulated for the determination of the appeal in the appellants brief of argument. The issues are:
“1. Whether the learned trial Judge was right to derail from his well founded legal conclusion that it is correct to take first the motion that is constructive before destructive motion all the flimsy grounds of (a) that the parties sought to be joined were not in court and therefore not interested in the case and (b) that time and cost will be saved thereby.
- Whether the vacation of the order of interim injunction of the lower court made on the 23rd day of December 1996 was in breach of the principle of fair hearing.
- Whether the vacation of the order of interim injunction of the lower court made on the 23rd day of December, 1996 was right in the circumstances of the case and of the proceedings of 2nd December,
1997.”
In the brief of argument filed by the respondents, three issues were also identified for the determination of the appeal. They are:
“1. Is there a valid appeal before this Court?
- If the answer to I above is positive, was the learned trial Judge right in hearing the defendants/respondents’ motion for setting down the points or law and the dismissal or the action before the plaintiffs/appellants’ motion for joinder’?
- Was the learned trial Judge right in vacating the order of interim injunction considering all the circumstances of this case?”
The appellants also filed a Reply brief in response to the respondents’ brief.
Before embarking on the consideration of the issues for determination in this appeal it is necessary to observe that issues 1 and 2 as framed in the respondents’ brief of argument do not relate or arise from any of the 3 grounds of appeal filed by the appellants. It is the requirement of our law that while the respondents as parties to this appeal are indeed free to frame their own issues for the determination of this appeal different from those issues framed by the appellants in their own brief, it is absolutely necessary that the issues must arise and relate to the grounds of appeal filed by the appellants as the respondents have not filed any cross-appeal or respondents’ notice. Definitely the appellants could not have filed any ground of appeal challenging the competence of their own appeal which could have supported issue No. I in the respondents brief of argument. In any case that issue No. 1 in the respondents’ brief is not an issue at all for the determination of this appeal but a challenge to the very existence of the appeal itself. Although the learned counsel to the respondents has decided to name it as an issue in the brief of argument, it is in reality a preliminary objection to the hearing of the appeal on the ground that the appeal is incompetent. A formal notice of the preliminary objection should have been filed and saved by the respondents 3 clear days before the date fixed for the hearing of the appeal as required by Order 3 rule 15 of the Court of Appeal Rules 1981 before it could be taken on this appeal. There is no indication from the record that this rule has been complied with. Similarly, respondents’ issue No.2 which arose from their issue No. 1 also does not relate to any of the appellants, grounds of appeal because the respondents’ motion referred to in that issue is yet to be heard. The position of the law is that points not raised in any ground of appeal and for which no leave of the lower court or of this Court to argue the points has been sought and obtained, cannot be competently raised in a brief of argument. See Osinupebi v. Saibu (1982) 7 SC 104. In other words in order that any issue raised for determination may he considered by the appellate court, such an issue must be based on and arise from a proper or competent grounds of appeal. See Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 and Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203. Thus, having regard to the state of the law, where any issue framed for determination does not arise from the grounds of appeal filed, both the issue and the arguments in support thereof set out in the brief of argument would be struck out or discountenanced. See Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409. For the foregoing reasons, the respondents’ issues 1 and 2 and the arguments in their support are hereby struck out. It is my view that the issues as identified in the appellants’ brief are the issues for determination in this appeal.
The first issue for determination is whether the learned trial Judge was right in deciding to hear the respondents’ motion for dismissal first. In support of this issue, the learned counsel to the appellant had argued that the correct position of the law is that where there are two applications pending before a court, one constructive while the other destructive, the court will normally proceed to take the constructive application unless it will be inequitable to do so, so that if that application succeeds there would be no need for the destructive application which will then be withdrawn and struck out. The cases of Attorney-General of the Federation v. A.I.C. Limited & On. (1995) 2 NWLR (Pt. 378) 388 at 397, NALSA & TEAM Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667-668 and Dr. Okonjo v. Dr. Odje (1988) 10 SC 267 were cited and relied upon in support of this submission. Learned counsel contented that the learned trial Judge was in error when he considered as inequitable the absence of the parties sought to be joined, their lack of interest in the case, the cost and waste of time and this had occasioned a miscarriage of justice. That having regard to the provisions of Order 11 rule 2 of the Bendel State High Court Civil Procedures Rules 1998 now applicable in Delta State under which the appellants’ application for joinder was made, it was not necessary for the parties sought to be joined to be present in court and that the provisions have also made it imperative for the trial court to consider the application first before any motion asking the court to dismiss the action on ground of lack of proper locus standi of the appellants. Counsel therefore urged this court to allow the appeal and set aside the order of the lower court of 2-12-1997.
The respondents however maintained that the learned trial Judge was perfectly in order when he decided to hear their application for the dismissal of the appellants action first so that the trial court would be able to determine if the appellants have locus Standi to bring the action. Learned counsel referred to the two cases of Attorney General of the Federation v. A.I.C. Ltd. (Supra) and observed that as both cases dealt with breaches of rules of practice and procedure which were considered to be mere irregularities, the cases do not apply to the present case which is on all four with the decision of this court in Owners M/V Baco Liners 3 v. Adeniji (1993) 2 NWLR (Pt. 274) 195. That the issue of locus standi being one on jurisdiction, must be addressed first by the court before taking any step in the action in view of the decision of the Supreme Court in The State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33. Learned counsel therefore concluded that the lower court was in order in deciding to hear the respondents motion for dismissal of the action first.
There is no doubt whatsoever that the order of treating multiple applications coming up simultaneously for hearing before a court is a matter of the discretion of that court which according to the law must be exercised not only judicially but also judiciously. In this regard the Supreme Court and this Court have laid down certain guiding principles in considering such multiple applications. One of the leading decisions of the Supreme Court on the subject is the case of Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 at 667 where Nnaemeka-Agu JSC (as he then was) observed as follows:
“The simple question raised by the first issue in this appeal is therefore, whether the rule as to the priority of hearing of opposing application where one side seeks to strike out or dismiss a case on ground of an irregularity in procedure and the other seeks to extend time to regularise the irregularity is applicable in a case like this …. It appears to me that for a proper resolution of the real issue raised by this aspect or the appeal, it is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules there is already in existence a valid proceeding before the court. In such a case, if there are two motion, one seeking to raise a point of non compliance with a rule or an order of court and the other seeking to strike or dismiss the proceedings on ground of the non compliance, a court of justice and equity ought to take the motion which seeks to regularise the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs.”
Furthermore, in the same decision, Karibi-Whyte J.S.C had this to say on the subject at pages 676 – 677 of the report:
“It is elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly, where an application is properly brought before the court the principle of fair hearing demands that it should be heard on its merit. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. I agree entirely with the well settled proposition that where there are two motions before a court requiring to be heard, the interest of justice demands that the motion the determination of which would save the substantive action should first he heard. The principle is founded on the reasoning that where the application succeeds, then the other application can be taken.”
… In the exercise of its discretion to hear applications before it, the court is guided by considerations of doing justice between the parties. and to ensure ultimately that the dispute between the parties was decided on its merit. See Khawanm v. Elias (1960) FSC 224;Â Â (1960) SCNLR 516.
Wherein the exercise of its discretion an application to dismiss the action was first heard resulting in action being struck out. Justice would not have been done to an applicant whose application to regularise his appeal, the basis for the application to dismiss the appeal is still pending, this will tantamount to a wrongful exercise of discretion See Adegbe & Ors, v. Ugbodume & Ors. (Supra).”
The same principles re-echoed recently at the Supreme Court in the case of Attorney-General of the Federation v. A.I.C. Ltd. & On. (1995) 2 NWLR (Pt. 378) at 397 where in deciding which of such motions should be taken first, Kutigi, JSC. stated as follows:
“When the two motions come before us for hearing on 5th December, 1994 Professor Kasunmu Learned Senior Counsel for the respondent/applicant insisted that his motion must he taken first since it was earlier in time and if granted there would be no further need for the applicant’s motion, h was then pointed out to him that since the appellant’s motion which was wider in scope also clearly covered his own, the two motions would be taken together beginning with the appellant’s counsel. I would have thought that Professor Kasunmu ought to have been aware of the general practice by now that where in the same case there are two adversely competing motions before a court, one “Constructive” and other potentially “destructive”, the court will normally proceed to take the former motion first unless it will be in-equitable to do so, so that if it succeeds there would be no need for the latter motion which will then be withdrawn and struck out accordingly. ”
Now, applying the principles laid down above to the facts and the circumstances of the present appeal, it is not difficult to see that the learned trial Judge was in grave error in his ruling of 2-12-1997 when he decided to hear the respondents’ motion for the dismissal of the action which is potentially destructive first, while the appellants’ motion dated 17-11-1997 for the following reliefs:
“1. An order joining the parties sought to be joined as co-plaintiffs in this suit.
- An order amending the pleadings already filed to reflect the joinder.
- An order staying further proceedings in this suit pending the hearing and determination of this motion.”
which is dearly constructive was still pending. Undoubtedly, this is a wrong exercise of discretion because if the respondents’ motion for the dismissal of action succeeds, the appellants’ right to be heard on their own motion seeking to regularise the defects in their pleadings would have been denied thereby resulting in denial of fair hearing guaranteed under section 33(1) of the 1979 Constitution. The case of Owners M/V Baco Liners 3 v. Adeniji (1993) 2 NWLR (Pt. 274) 195 heavily relied upon by the respondents is indeed not on all fours with the present case as the determination of the order of hearing two adversely competing motions before a court, was not directly in issue in that case. In any case since the appellants’ motion was not being heard, the learned trial Judge was in error to have taken into consideration in deciding which of the two motions should be taken first, matters like the absence of the parties sought to be joined in the action as contained in the appellants’ motion show their lack of interest in the action. This comment is clearly prejudicial to the determination of the appellants’ motion which is yet to he heard. This issue is therefore resolved in favour of the appellants in order to allow the appeal and facilitate the hearing of both the appellants’ and the respondents’ motions which are still pending at the lower court.
The second and third issues for determination in the appellants’ brief of argument and issue No.3 in the respondents’ brief all arose from the order of the lower court vacating the order of interim injunction of 23rd December, 1996 which gave rise to grounds 2 and 3 of the appellants’ grounds of appeal. The issues may therefore be conveniently taken together. The issue for determination in this respect is whether the vacation of the order of interim injunction in the circumstances was right and whether or not it was in breach of the appellants right of fair hearing and therefore a nullity. Learned counsel to the appellants had argued that since the vacation of the order was made by the lower court after discharging the appellants’ counsel from appearing for the appellants in the case and in the absence of the appellants themselves, the appellants were not given a hearing before the order vacating the interim injunction was made. That in any case, as the matter concerning the interim order of injunction was not before the learned trial Judge for hearing on 2-12-1997, it was wrong for him to have vacated the order without giving the appellants any hearing contrary to section 33(1) of the 1979 Constitution. For the respondents however, it was contention of their learned counsel that the discharge of the appellants’ counsel and the interim injunction were done contemporaneously and by the same ruling after hearing the application of the respective counsel. That the impression created in the appellants’ brief that the proceedings continued after the discharge of the appellants’ counsel and in the absence of the appellants is wrong. That as the appellants in whose favour the interim order of injunction was made were doing all they could to frustrate the hearing of the motion on notice and the substantive case, the learned trial Judge was not only correct in discharging the order, he was duty bound to do so on the authority of the cases of Onwuzulike v. Nwokedi (1989) 2 NWLR (Pt. 102) 229 at 239 and Ogbonna v. N.U.R.T.W. (1990) 3 NWLR (Pt. 141) 696 at 705.
It is significant to note from the facts of this case which I have earlier in this judgment carefully narrated, that the respondents’ application to discharge the interim order of injunction was not one of the motions listed for hearing by the lower court on 2-12-1997. In other words there was no formal application on the matter filed by the respondents and served on the appellants like the other motions listed for hearing that day. The matter merely came up in the course of the respondents’ arguments opposing the appellants’ counsel’s application for adjournment of the respondents’ motion for dismissal of the action which the learned trial Judge decided to hear first on that day. The record of the learned counsel to the respondents’ reply to the application for adjournment reads: “Mr. Osaze Uzzi in reply submits that he is opposed to the application for adjournment for the following reasons:
(1) The plaintiff secured an ex-parte interim injunction on 23-12-1996 which is one year ago …
(2) …
(3) …
(4) If the court concedes to adjournment, counsel urge court to discharge the interim order 23-12-1996 in interest of justice and fair play.”
The learned trial Judge without hearing the appellants’ counsel on the condition put forward by the respondents’ counsel for discharging the interim order of injunction if the application for adjournment were to be granted, proceeded and ruled against the appellants application for adjournment and allowed the respondents’ counsel to move his motion for dismissal of the action which was set down for hearing and determination “forthwith”. It was at this point that the learned counsel to the appellants asked for a new date or else he should be discharged from the case in its entirety. The respondents’ counsel’s reaction to the application for adjournment or discharge from the case at page 103 reads:
“Osazee Uzzi – submits that he is not objecting to Mr. Akpomudje withdrawing from the case but will want the interim injunction discharged. He is also not objecting to adjournment.”
The learned trial Judge again without hearing the appellants’ counsel on the condition put forward by the respondents’ counsel for not opposing the application for adjournment, merely proceeded and discharged the appellants counsel from the case before proceeding to discharge the interim order of injunction of 23-12-1996 and then adjourned the respondents’ motion for dismissal to 26-2-1998 for hearing. It is therefore quite clear from the record of the trial court that the appellants were not heard on the respondents’ application to discharge the order of interim injunction of 23-12-1996 before it was granted.
There is no doubt that the main complaint of the appellants in this issue is not only that the lower court was wrong in discharging the interim order or injunction but also that the lower court acted in error in discharging that order without giving the appellants a hearing. This is because it is quite clear from the record of the lower court that although the appellants’ counsel’s application to withdraw from the action was heard and granted in the same proceedings of 2-12-1997 in which the interim order of injunction was also discharged, the record has revealed quite clearly that while the respondents counsel was given a hearing when he said he had no objection before the appellants’ counsel was discharged from the case on his own application, neither the appellants nor their learned counsel was given such a hearing before the respondents’ application to discharge the interim order of injunction was granted by the learned trial Judge.
It is a basic principle of our law that where a person’s legal right or obligations are called into question, he should he accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations.
In other word, it is indispensable requirement of justice that an adjudicating authority, to be fair and just shall hear both sides giving them ample opportunity to present their cases. See Gukas v. Jos International Breweries (1991) 6 NWLR (Pt.199) 614 at 623 and Alhaji Mohammeed & Anor v. Lasisi olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485. Accordingly, a hearing can only be said to be fair when all the parties to the dispute are give a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity of being heard, as happened in the present case, such hearing cannot qualify as a fair hearing under our law particularly section 33(1) of the 1979 Constitution. See Otapo v. Sunmonu  (1987) 2 NWLR (Pt. 58) 587.
The right to fair hearing is a fundamental constitution right guaranteed under the 1979 Constitution and its breach usually results in nullifying the proceedings. See Adigun v. A.G. Oyo Store (1987) 1 NWLR (Pt. 53) 678 and Olumesan v. ogundepo (1996) 2 NWLR (Pt.433) 628 at 645.
There can be no doubt at all that the law frowns on an ex-parte interim injunction being allowed to continue over the head of a defendant for a long time before the merit of the injunction is determined in an interlocutory proceeding upon a motion on notice, as happened in the present case. However, the defendant over whose head such order is left hanging reserves the right and liberty to move the court to discharge such ex-parte order or injunction even before the named date until which its was to last or before the motion on notice comes up for hearing. This is because the life of an ex-parte injunction should be normally short or brought to an end with minimum delay. See Onuzulike v. Nwokedi (1989) 2 NWLR (Pt. 102) 229 at 239. However, where such application for discharging an ex-parte order of interim injunction is made by the affected party, the other side for whose benefit the order was made must be given a hearing before the order is discharged. On the whole this interlocutory appeal succeeds and it is hereby allowed. The ruling of the lower court of 2-12-1997 in which it decided to hear the respondents’ motion for dismissal first is hereby set aside and substituted with an
order hearing the appellants’ motion dated 17-11-1997 for joinder of parties and amendment of pleadings first, before hearing the respondents’ motion for the dismissal of the action. The action of the lower court of 2-12-1997 discharging the interim order of injunction of 23-12-1996 having been made without giving the appellants a hearing, is hereby declared a nullity. Having regard to the circumstances of this case, the entire suit No. W/399/96 and the pending motions are hereby remitted to the Chief Judge of Delta State for assignment to another Judge of the Delta State High Court of Justice for hearing.
The appellants shall have Three Thousand Naira (N3,000.00) costs against the respondents.
Other Citations: (1998)LCN/0416(CA)
