Global Medical Care (Uk) Ltd. & Ors. V. Medicair (West Africa) Ltd. & Anor. (1997)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
On 14th day of May, 1997, an aircraft – an air ambulance which was to be used to carry a patient with kidney trouble was arrested by the order of the court below made ex parte. This court on an application, granted interim relief by way of lifting the arrest order temporarily pending the determination of the motion on notice filed on 21/5/97. The motion of 21/5/95 seeks for a prayer vacating the arrest of the Aircraft with Reg. No. N155AV now under arrest at the Domestic wing of Murtala Mohammed Airport, Ikeja.
The pertinent order of the court below which bothered the applicants reads as follows:
- That the defendants, whether by themselves, their servants, agents privies or otherwise whatsoever from removing from the jurisdiction, disposing of and/or dealing with their assets within the jurisdiction of this honourable court and in particular that aircraft model/type lock head jetstar 73 with registration/callsign No. N155AV which bears the name of the first defendant and is said to be operated by the second defendant and which said aircraft is presently parked and located at the General Aviation Terminal (Terminal 2) of the Domestic Wing of Murtala Mohammed Airport in Ikeja, Lagos State until determination of this suit or further orders of this honourable court.
In their affidavit of urgency the applicants averred as follows in paragraphs 5, 6 and 11:
(5) That at about 10.30 a.m. on 19/5/97 a patient with acute kidney stone problem who needed to be evacuated abroad could not be evacuated owing to the pending court order and which order I have been informed by Dr. Braithwaite (whom I believe) is a nullity.
Now annexed as exhibit OG5 is a copy of the form (First Call Sheet) ruled by the patient in question and his family.
(6) That this urgent instance was brought to the attention of the court below on 19/5/97 but the court below refused to attach due weight to the said urgency.
(7) That the continuous grounding of the air ambulance makes the difference between life and death to make the difference between life and death to many terminally ill persons who urgently need to be evacuated abroad.
At paragraph 14 of the main affidavit in support, the deponent averred thus:
- That the air ambulance under arrest is a foreign registered aircraft used solely and exclusively for the evacuation to overseas of seriously ill patients in crisis and terminally ill patients. Now annexed as exhibit is a copy of the certificate of registration of the said aircraft.
From the certificate one can easily discover that the aircraft was registered in US by the Department of Transportation – Federal Aviation Administration. In an earlier motion in the court below when the applicant made a bid to have the aircraft released (which application was turned down), the applicants had deposed thus at paragraph 13 of the affidavit in support:
Paragraph 13:
“That there is no sustainable claim whatsoever against the air ambulance or its lawful owners nor against the 2nd, 3rd, 4th, 5th and 6th defendants in the process filed by the plaintiffs to justify a continued injunction on the aircraft”.
The argument of the applicants is that the order of arrest was pervasive in that its language of operation was couched in the widest possible terms. The order of arrest was to continue until the final determination of the suit. The applicant felt very much ill at ease at the seeming unjustifiable way a mere interim order was converted at the whims of the court to an interlocutory order. Ex parte order by its very nature is interim in nature meant to last for a very short time.
Onagbola in reply stated that the applicants are now trying to convince the court of the true owners of the aircraft a matter they failed to raise in the court below. In their counter affidavit the Respondents exhibited the proceedings that took place in the court below presided by Gumel, J. It is to be observed from the proceedings of 16/5/97 the presiding Judge even then refused to lift the order of arrest which he surprisingly described in that proceeding as an “interim order”. There are different kinds of injunctions. They are ex-parte interim injunction, interlocutory injunction, perpetual injunction, mareva injunction and Anton Piller injunctions. Apart from interlocutory injunction the rest have limited application and are conceived of being of extremely short duration. To my mind the objectionable parts of the order made ex-parte are:
(i) the length of time the interim order was meant to last, and
(ii) the choice of the Res
A clear construction impresses me that it was intended to block or foreclose any attempt to have it set aside and that it should so remain detained under arrest orders until the case is finally disposed of.
In our characteristically slow pace of adjudication no one could state with any certainly how long the process of trial will take before the final determination. Within this period the aircraft would remain at the tarmac. Might some of the parts not get rotten and fall in a state of disrepair and in all probability the respondents would have done themselves an incredible amount of harm by literally destroying the only substantive object that they could lay hands upon if they should succeed in the action. The answer to the seizure of the aircraft by the averment in para 24 of the counter affidavit does not provide a veritable reason for allowing the seized aircraft to be left unused.
In para 24 referred to the respondents are saying that in the brochure of the 1st appellant it claimed it could provide a back-up aircraft at any time. I believe this is being taken out of its context. The reference to back-up aircraft is in case of any eventuality such as the aircraft being out of condition. The brochure states:
“Our associate office in Johannesburg provides … the facility to charter back-up aircraft and provide medical teams and equipment …”
It is important to make a clear distinction between an interim and interlocutory injunction. Interim injunction is a temporary preservative order usually limited to such time as the motion on notice in same subject matter is determined. On the other hand, interlocutory injunction is a prohibitive order the duration of which by its singular nature may be conceived to last till the determination of the matter in the court seised with the proceedings. In Kotoye v C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 450, Nnaemeka Agu, J.S.C. stated as follows on the dangers of ex-parte orders;
“Above all, this Court ought to take notice of the numerous cases of abuse of ex-parte injunctions that have come up in recent times. The operation of a bank has halted on an ex parte order of injunction, granted to a person who had been removed as a director of the bank. Installation ceremonies of chiefs have been halted in the same way even though the dispute had been dragging on for years. The convocation ceremony of University has been halted on an ex parte application by two students who failed their examinations. As the courts cannot prevent such applicants from exercising their constitutional rights by stopping such applications, they can, and ought at least see that justice is done to the victims of such ex parte applications and orders by ensuring that the applicant fully undertakes to pay any damages that may be occasioned by any such order which may turn frivolous or improper in the end.”
In that same judgment, Karibi-Whyte, J.S.C. said at page 465:
“Thus an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application. An application for injunction made after the commencement of the suit and before judgment is undoubtedly interlocutory and comes within the purview of order XXXIII. Such application can be made ex parte. Although an ex parte application for injunction can be made, the court may refuse to make the order sought where the interest of justice demands that the other party to be affected ought to be put on notice, or it will be contrary to the general provisions of the law or inconsistent with the interest of justice.”
See also 7up Bottling Co. Ltd. v Abiola and Sons (Nig.) Ltd. (1989) 3 NWLR (Pt.83) page 257. Ex parte order is made for a short duration and in making it the court should exercise great care in not granting the applicant a favour that would turn out to be a great injustice to the respondent. That is why the order is short being interim in nature. In Beese v. Woodhouse (1970) 1 A.E.R. 769 at 773, it was held that where an interim injunction is sought, it is a question for the court to consider what is the right order to make on the balance of convenience and where the major risk of damages lies and in particular whether there would be any irreparable damage.
It is difficult for this court to comment seriously on grounds 2 and 4 of the application as we are not afforded the benefit of the Statement of Claim. It must be stated that when an ex parte application is couched in a widely expressed language that it becomes all embracing, prudence and justice of the case demand that the court in approaching such a matter should be very cautious in granting the prayer sought. The court must bear in mind that the other party is not in court to be heard and it must balance the need of the applicant with the provision of section 33 of the Constitution of the Republic to see that true unadulterated justice is done. There are in my view certain steps that could have been taken by the applicant to hold the respondent in tow such as asking them to deposit a security but then such an application will of necessity be by motion on notice. To my mind the language of the arrest order made by the court is too wide. No consideration from human point of view (considering the health of the patient with kidney trouble and other like patients) was given by the court in making the order. The order appears to me to be too harsh.
Accordingly the order of arrest made is wrong as the court below converted an interim order sought for into an interlocutory one. The order of arrest is set aside.
The aircraft is hereby released. Costs of N2.000.00 to the applicant.
Other Citations: (1997)LCN/0289(CA)
