Home » Nigerian Cases » Court of Appeal » Sabru Nigeria Limited V. Jezco Nigeria Limited (2000) LLJR-CA

Sabru Nigeria Limited V. Jezco Nigeria Limited (2000) LLJR-CA

Sabru Nigeria Limited V. Jezco Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

The facts leading to this appeal can be summarised as follows:- The appellant in this appeal was the defendant in the court below; while the respondent was the plaintiff at the court. The plaintiff in that court sued the defendant by a writ dated 6/12/96 for a declaration, damages and a perpetual injunction, the plaintiff also on the same date by a motion Ex-parte sought for an interlocutory injunction to restrain the present appellant, its servants, agents or privies from entering, building or in any other way interfering with the partly developed stores at Jimeta Motor Park Pending the determination in this suit. (Italics are for emphasis).

The appellant contends that he was neither served with the writ of summons nor with the motion papers. The entire application was heard without any notice of such notice of motion given to the appellant. The learned trial Judge heard argument from counsel to the plaintiff and granted all prayers sought by the plaintiff. There was no undertaking as to damages extracted from the plaintiff/applicant.

Dissatisfied with the ruling of the trial Judge dated 12/12/96 the appellant has appealed to this court on three grounds which are set out hereunder:-

GROUNDS OF APPEAL

“The learned trial Judge erred in law when he granted an interlocutory injunction pending the determination of the suit against the appellant herein upon an ex-parte motion by the respondent, without affording the appellant an opportunity to be heard on the application”.

PARTICULARS OF ERROR:

(i) “The Constitutional right of fair hearing as enshrined under section 33(1) and (2) of 1979 Constitution (as amended and preserved) was totally disregarded in the proceedings of the court below in making an order of injunction against the appellant ”

(ii) The appellant was not given any hearing at all not to talk of fair hearing.

The learned trial Judge erred in law when he proceeded with an assumed jurisdiction in the application for interlocutory injunction in utter disregard and complete violation of appellant’s fair hearing which proceeding thereby occasioned a miscarriage of justice. ”

PARTICULARS:

(i) The trial Judge allowed himself to be persuaded only by hearing from the respondent and making an order prejudicial to appellant.

(ii) The learned trial Judge has formed an impression without hearing appellant.

(iii) The rules of natural justice have been violated to the prejudice of appellant’s case.

The learned trial Judge erred in law in granting an order of interlocutory injunction against the appellant in an ex-parte application without respondent making any undertaking as to damages. ”

PARTICULARS:

(i) “The respondent did not give any undertaking as to damages in his affidavit in favour of appellant.

(ii) The learned Judge also did not make any order as to undertaking on damages in favour of appellant. ”

Briefs of arguments were filed and exchanged. From the three grounds of appeal, the appellant indicated in his brief of argument that three issues were distilled there from, although I found only two issues raised and argued by the appellant. The two issues are set out hereunder:-

“Appellant contends that given the three grounds of appeal filed by the appellant, three issues calls for determination they are:-

(i) Whether the entire proceedings of 12/12/96 in which an order for interlocutory injunction was granted by the learned trial Judge against the appellant on an ex-parte application and without opportunity of being heard was not itself unlawful and a clear violation of appellant’s right to fair hearing?

(ii) Whether the learned trial Judge was not in error to grant an interlocutory injunction, on an ex-parte application without extracting an undertaking as to damages or making order as to damages in favour of the appellant “.

Out of the three grounds of appeal the respondent formulated four issues for determination, they are set out hereunder:-

“The respondent contends that the issues for determination in the appeal are as follows:-

(i) Whether on the affidavit evidence before the learned Judge there was a good cause for the appellant to be restrained.

(ii) Whether, assuming, but not agreeing, that the Order of interlocutory injunction made was wrong the appellant’s remedy lay in an appeal or in an application to set it aside or to discharge it.

(iii) Whether, assuming, but not conceding, that there was need for an undertaking in damages being ordered it cannot now be ordered by this court.

(iv) Whether, in the light of the provisions of Order 8 Rule II of the Gongola State High Court (Civil Procedure) Rules 1987, the Order made on 12/12/96 breached section 35(1) of the 1979 Constitution, as amended.”

I am constrained to observe here that neither the appellant nor the respondent related his issues to the grounds of appeal. Worse still, the respondent formulated four issues out of three grounds of appeal. This laxity exhibited by counsel in writing their brief of argument must be deprecated. That book on brief writing by Nnameka-Agu, J.S.C. and a spate of Supreme Court authorities and of this court should be good companions to counsel writing brief of arguments.

However, as the appellant has formulated two issues out of three grounds, I may prefer his issues to the four formulated from three grounds of appeal by the respondent.

Both counsel argued all issues together.

“It is the contention of the appellant in this appeal that the respondent at the lower court was wrong to have proceeded to court to seek an order of interlocutory injunction to restrain the appellant from entering, building upon or in any way interfering with the property in dispute pending the final determination of the case without putting the appellant herein on notice.”

“It is also submitted that the learned trial Judge was with all due respect to him equally wrong to have assumed jurisdiction on the same application, bearing in mind the prayers sought when no notice was given to the appellant to afford him opportunity to respond to the motion.”

“Order 33 rule 1(2) of the Gongola State High Court (Civil Procedure) Rules 1987 provides that in cases of urgency, an application for grant of injunction may be made ex-parte but that in all other cases, such application shall be by motion. It is the submission of the appellant that the provisions of Rule 1(2) of order 33 cannot be read in isolation of the provision of rule 2(5) of the same Order 33 and cannot in any case be read and construed to derogate from the provisions of Section 33 (1) of the 1979 Constitution as amended touching on fair hearing. ”

It is clear that when the respondent by his ex-parte motion of 6th December, 1996 proceeded to court he neither sought for an interim nor did he file a motion in notice. Instead respondent canvassed for a final order in respect of the injunction sought without any attempt of affording the appellant opportunity of being heard. ”

“An interlocutory injunction such as the one sought for by the respondent has been defined as one made pending the final determination of pending suit. See Obeya Memorial Specialist Hospital v. Attorney-General of the Federation (1987) 3 NWLR (pt.60) at 325; Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt.26) 39, Kotoye and C.B.N. (1989) 1 NWLR (Pt.98) 419 at 422. An Interim injunction on the other hand is one made or granted to last until a named or definite date or until further order or pending the hearing of motion on notice between the parties. See Kotoye v. C.B.N (1989) 1 NWLR (Pt.98) 419 at 422; Globe Fishing Industries v. Coker (1990) 7 NWLR (Pt.162) 265, (1990) 11 SCNJ 56 at 57”

“It is the appellant submission that an interlocutory injunction as was granted by learned trial Judge on 12/12/96 being an injunction granted after due contest inter partes cannot be made unless there is an application on notice duly served on the appellant. To assume jurisdiction in the determination of the interlocutory injunction as was done by the learned trial Judge was clearly a violation of the right as to fair hearing of the appellant”

“What the learned trial Judge was called upon to do by the application for interlocutory injunction was to determine the legal right and obligation of all the parties pending the final determination of the case. It is submitted that it is a basic principle of law that appellant should be afforded full opportunity to be heard before any adverse decision is made against him with regard to such right or obligation. It is an indispensable requirement of justice and such hearing where the appellant was not heard as in this case cannot qualify as fair hearing under the audi alterem partem rule. ”

“It is submitted that the proceeding of 12th December, 1996 offends the provision of Section 33 of 1979 Constitution as amended. That breach by itself nullifies the entire proceedings and the resultant ruling of same date. It is submitted that appellant in this case need not establish any injury or prejudice to itself before that provision relating to fair hearing and rules of natural justice can be invoked. See Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53)678. ”

“Appellant submits that the court of appeal is under a duty to set aside the offending proceedings and ruling of 12/12/96.”

“In the Supreme Court case of Kotoye v. CB.N. (1989) 1 NWLR (Pt.98) 419, a case in which the facts are almost on all fours with the present appeal. The issues raised for determination were:-

(i) Whether interlocutory application for injunction pending final determination of substantive suit can be made and granted ex parte; and

(ii) Whether a trial court should take an undertaking as to damages in cases of injunction and what will be the effect where such undertaking as to damages was not made. ”

“In Kotoye’s case (Supra) the plaintiff filed a motion ex-parte for interlocutory injunction pending final determination of the substantive suit. The application was granted, even though no motion on notice was filed by the plaintiff when he was asking for the ex-parte order. The Court of Appeal allowed the appeal and set aside the order made. An unsuccessful appeal was also lodged at the Supreme Court against the decision of the Court of Appeal. The Supreme Court in holding that grant of interlocutory injunction by the trial court without notice to the other party was a clear violation of the right of fair hearing of the affected litigant also made the following pronouncements”.

“The respondents without being heard in opposition had been restrained from preventing the holding of the general meeting of 3rd respondents scheduled to take place on 25th of April. I do not see how it could ever be doubted that they were entitled to be heard at this point before the order was made…

In my judgment, the overriding question is whether in the orders relating to restraining the holding of general meeting as well as touching on the appointment of Directors, the respondents were in the court of trial, entitled to be heard before the application was heard and the order made ” (Italics ours) See Nnaemeka Agu J.S.C. at page 447 to 448 in Kotoye’s case. ”

The respondent countered that:-

“The respondent will submit that the learned Judge was right to have restrained the appellant as he did in view of the affidavit evidence before him. The facts on the ground called for urgent action to preserve the res. The learned Judge is empowered by Order 33 Rule 2 and Order 8 rule 7(2) of the Gongola State High Court (Civil Procedure) rules 1987 to have made the order which he made”

“The respondent will submit that on the facts before the court, it was obliged and correct to have made the order ex-parte as the matter was clearly urgent. The respondent will submit that the cases of Obeya Memorial Hospital and Ojukwu v. Governor of Lagos State cited are not in point as the facts are distinguishable from the present case. Also in both cases there was no danger of the res being destroyed or fundamentally and extensively tampered with.”

“The respondent submits that the provisions of Order 33 Rule 2 and Order 8 Rule 7(2) of the Gongola State High Court (Civil Procedure) Rules 1987 are neither in breach nor inconsistent with section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria, as amended. Section 33(1) of the Constitution provides:-

“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, ‘a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality’ (Italics ours) ”

“Order 8 rule 11 of the Gongola State High Court (Civil Procedure) Rules 1987 provides:-

“Where an order is made on motion ex-parte, any party affected by it may within 7 days after service of it or within such further time as the court shall allow, apply to the court by motion to vary or discharge it; and the court, on notice to the party obtaining the order, either may refuse to vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.”

“See Essays on Civil Proceeding Vol. 1 (1983) by A Okoye page 336 paragraphs 441 and 442. The Order appealed against was made on 12/12/96, served upon the appellant together with the writ of summons and motion papers and the case was adjourned to 17/12/96 for mention. The respondent submits that the appellant was thus given an opportunity within a reasonable time to apply for the variation or discharge of the order made ex parte in line with Order 8 Rule 11 (supra). ”

“The respondent submits further that in view of the opportunity provided by the said Order 8 Rule 11, for the appellant to be heard on the issue of interlocutory injunction, the proceedings of 12/12/96 cannot be said to have breached section 33(1) of the Constitution. The respondent contends that the cases of Adigun v. A.-G.Oyo State and Olumesan v. Ogundepo cited do not support the appellant’s case. The facts of Adigun v. A.-G.Oyo State make it irrelevant to the present case, while the decision in Olumesan v. Ogundepo relates to where that aggrieved party was neither heard nor given the opportunity to be heard unlike in the present case where the appellant could have sought a discharge or variation under Order 8 Rule 11 (supra). In Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628, the Supreme Court said in pages 644-654 (per Iguh J.S.C.):-

“It is the basic principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused or denied a hearing or is not given all opportunity of being heard, such hearing cannot qualify as a fair hearing under the audi alteram pertem rule “.

(Italics ours). ”

“The respondent submits that the appellant was not denied an opportunity to be heard.”

“The respondent will contend that the case of Kotoye v. C.B.N. (supra) does not apply to the present case since, as has been earlier argued above, the relevant rules of court under which the order was made neither breached nor are inconsistent with the provisions of the constitution”

“Also, the case of Kotoye v. C.B.N. is distinguishable from the present case. In Kotoye’s case there was no res sought to be preserved and the urgency of the situation was found to be self-induced.

In the present case, on the affidavit evidence before the court below, there was a clear danger of the res being extensively and fundamentally tampered with and the urgency was real and compelling.”

This appeal involves a question which has raised some serious furor in recent times, to wit: The question of ex-parte orders of injunction. It touches an area of law which in spite of numerous appellate decisions, appears to have been quite often misunderstood and misapplied by some courts of trial. The fact that errors continue to occur in courts of trial even in recent times show that there is an urgent need to restate the law. The facts leading to this appeal were summarised above for a full appreciation of the legal problems involved. The crux of it is that the trial Judge granted an interlocutory injunction based on an ex parte application and the respondent contends that this court could set it aside. Quite importantly too no undertaking as to damages was extracted from the respondent in the lower court and no motion on notice was filed to the same effect. The trial court heard the motion and granted the same in the following words:-

“COURT: Having read the motion papers, the affidavit in support the application together with the exhibits annexed to this application and hearing learned counsel for the applicant, I formed the impression that there is need to protect and preserve the res in its present form till the final determination of this suit. A host of authorities attest to this proposition especially the case of Saraki v. Kotoye (supra) 149 Ratios 11 & 13. Accordingly the application is granted prayed ”

So much confusion and conflict have always surrounded the use of the expressions ‘ex-parte, ‘interim’ and ‘interlocutory’ that I deem it necessary to begin by examining these terms. Even in decided cases this lack of agreement as to the precise use of these words is pretty obvious. At times they are used as if ‘interlocutory’ and ‘interim’ were interchangeable. In Kufeji II v. Kogbe (1961) 1 All NLR 113 at 114 an application for an injunction which was fully argued and deliberated upon and in every way had all the attributes of an interlocutory injunction was referred to as interim injunction. In fact ‘interim’ and ‘interlocutory’ were freely used as if they were interchangeable. See also Iroegbu v. Ugbo (1970-71) 1 ECSLR 162.

I think it is correct to say that ‘ex-parte’ in relation to injunction is properly used in contradistinction to ‘on notice’ and both expressions which are mutually exclusive more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a non-permanent injunction may bring the application ex-parte or without notice to the other side or with notice to the other side as is appropriate. By their very nature, injunctions granted on ex-parte application 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 rationale of 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 such an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on ‘real’.

What is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. So if an incident which forms the basis of an application occurred long enough for the applicant to have given due notice of the application to the other side if he had acted promptly, but he delays as much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self induced urgency, not one of real urgency within the meaning of the law. This self induced urgency will not warrant the granting of the application ex-parte of Megarry J. (as he then was), put the principle rather succinctly in Bates V. Lord Hailsham of Marylebone (1972) 3 All ER 1019 at 1025 where he stated:-

“An injunction is a serious matter, and must be treated seriously. If there is a plaintiff who has known about a proposal for ten weeks in general terms and for nearly four weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight he must have a most cogent explanation if he is to obtain his injunction on an ex-parte application made two and a half hours before the meeting is due to begin. It is no answer to say, as counsel for the plaintiff sought to say, that the grant of an injunction will do the defendants no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiff’s case are less than compelling. Ex-parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion. “

On the other hand, even though the word ‘interlocutory’ comes from two latin words, ‘inter’ (meaning between or among) and ‘locutus’ (meaning spoken) and strictly means an injunction granted after due contest interpartes, yet when used in contradistinction to interim in relation to injunctions, it means an injunction not only ordered after a full contest between the parties but also ordered to last ‘until the determination of the main suit’. Applications for interlocutory injunction are properly made on notice to the other side to keep matters in status quo until the determination of the suit. On the hearing of the application for an interlocutory injunction, the court after avoiding all controversial issues of fact, has to decide a number of important issues, including:-

“(i) The strength of the plaintiffs case. A long time ago, the plaintiff, was required to show a strong prima facie case that he was entitled to relief. (See Harman Pictures N. V. v. Osborne (1967) 1 WLR 723. However, since the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. (1975) AC 396 at 407 -409, it has been held that what the applicant needs to show is only a real possibility, not a probability, of success at the trial that there is a serious question to be tried. This is now an accepted principle in this country. See Obeya Memorial Specialist Hospital Ayi-Onyema Family Ltd v. A.-G., Federation and Anor. (1987) 3 NWLR (pt.60) 325 at 340…

(ii) Once the applicant gets over the initial hurdle of showing that there is a serious question to be tried, he must succeed in showing that the balance of convenience is on his side that is that more justice will result in granting the application than refusing it. The onus of proving that the balance of convenience is on his side is that of the applicant. See Missini & Ors. v. Balogun (1968) 1 All NLR 318.

(iii) The applicant, to succeed, even if he has shown that he has a good case and that the balance of convenience is on his side must furthermore show that damages cannot be an adequate compensation for his damage, if he succeeds at the end of the day.

(iv) Conduct of the parties has also, quite often been a relevant factor in the consideration of whether or not to grant an application for an interlocutory injunction, as with permanent injunction for example, a plaintiff who is also in substantial breach of a contract cannot himself get an order of interlocutory injunction against a defendant alleged to be in breach. See Jackson v. Hamlyn (1953) 1 WLR 713. Also delay in bringing the application will defeat it because such a delay postulates that there is no urgency in the matter and destroys the very basis for a prompt relief by way of interlocutory injunction.

‘It can be seen from the nature of the above issues that they are such that they cannot, and ought not, be decided without hearing both parties to the contest. Interim injunctions, on the other hand, while always showing the trammels of orders of injunction made ex parte are not necessarily coterminous with them. Their main feature which distinguishes them from interlocutory injunctions is that they are made to preserve the status quo until a named date or until further order or until an application on notice can be heard. They are also for cases of real urgency. But unlike ex-parte orders for injunction, they can be made during the hearing of a motion on notice for interlocutory injunction, when, because of the length of the hearing, it is shown that an irretrievable mischief or damage may be occasioned before completion of hearing. Also, it can be made to avoid such an irretrievable mischief or damage when due to the pressure of the 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. See Beese v. Wordhouse (1970) 1 WLR. 586 at 590. It must, however, be emphasized that what the court does in such a case is not to hear the application for interlocutory injunction ex-parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until application for interlocutory injunction can be heard and determined. This is the way I see the dicta of Griffith, C.J in Thomas Edison Ltd. v. Bullock (1912) 15 CLR 679 at 681. The learned C.J. said:-

“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore as a general rule no order should be made to the prejudice of a party, unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the court and ask for its interposition even in the absence of his opponent on the ground that delay would involve greater injustice than instant action. ”

While I entirely agree with the learned C.J., I am also aware that there is nothing in the above dicta or in the case itself to warrant the hearing of an interlocutory application for injunction ex-parte. Indeed this court and the Supreme Court sounded much the same caveat, per Ibekwe J.S.C. (as he then was) in Woluchem v. Wokoma (1974) 1 All NLR (Pt.1) 605 at 607. His Lordship said:-

“An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prision for contempt. It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice.”