Samuel Igbinoba V. Madam Victoria Igbinoba & Ors (2002)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

A comedy of errors resulting to the rather bizarre ex-parte order, has been played out in the case leading to this appeal. The substantive action is yet to take off from the ground. Pleadings are yet to be filed, talk less of evidence. The drama all started when the plaintiffs took out a writ of summons against the defendant, claiming the sum of N4,272,333.50k as special damages for the destruction, which the defendant caused to the plaintiffs’ properties. Simultaneously, with the issuance of the writ on 26/1/98, the plaintiffs sought and obtained through an ex-parte application an order of the lower court, wherein the defendant was ordered to give security for this appearance to answer and satisfy any judgment that may be delivered against him.

The drawn up order reads as follows:

“… The defendant is ordered to give security for his appearance to answer, and satisfy any judgment that may be passed against him in this suit, in the event of his leaving the jurisdiction of the court before judgment. The security shall be in the form of bond executed by the defendant.

The defendant shall provide a surety to the bond and the surety shall have a house within the court jurisdiction. Such a surety shall leave copies of his title documents with the Assistant Chief Registrar of the High Court…”

On 30/1/98, the defendant filed a motion on notice in the High Court praying for two reliefs namely:

(a) Orders setting aside the issuance and service of the writ of summons; and

(b) An order of court, discharging the order obtained by the respondents wherein the appellant was ordered… ‘to give security for his appearance to answer and satisfy any judgment that may be passed against him…’ same having been improperly obtained.

The motion was supported with an 11 paragraph affidavit, which was deposed to by the defendant in person. In paragraphs 1, 3, 4, 5, 6, 7, 8, and 9 of the affidavit, in support of the motion, he deposed to the following facts:

1. That I am the defendant in the substantive suit presently pending before this Honourable Court.
2. That I received the writ of summons and the order made by this honourable court from the court bailiff on the 26th January, 1988.
3. That I have been informed by my counsel, P.O. Osemwenkha, Esq. whom I verily believe that the writ of summons does not state as required by the mandatory rules of court, the respective address of the plaintiffs.
4. That one of the orders served on me stated that: “The defendant is ordered to give security for his appearance to answer, and satisfy any judgment that may be passed against him in the suit, in the event of his leaving the jurisdiction of the court before judgment”.
5. That before the said order was made against me, no investigation or inquiry was conducted to authenticate the veracity of the applicant’s allegations against me.
6. That I was never asked to show cause why the aforementioned order should not be made against me before same was issued.
7. That I have never had or evinced any intention whatsoever of leaving the jurisdiction of this court, since I conduct my business from my base in Benin City.
8. That the action of the respondents in obtaining this order is presumptuous and prejudicial to a fair hearing, since it presupposes that there is a real likelihood of judgment being delivered against me without even hearing my own version of my innocence, the atrocities committed against my late father, who was murdered and myself.”

It is interesting to note that, despite being served with the motion papers together with the accompanying affidavit, the plaintiffs did not file a counter-affidavit, until learned Counsel for the defendant had argued his motion. It was at that juncture that learned Counsel for the plaintiffs applied for leave to file a counter-affidavit and he was so indulged before he made his reply. Thereafter, the learned trial Judge dismissed the application as lacking in merit. The defendant felt aggrieved with the decision and consequently filed his notice and 6 grounds of appeal. The defendant will hereinafter be referred to as the appellant, while the plaintiffs will be the respondents. Four issues were formulated in the appellant’s brief. The issues are:

(i) Whether the grant by the lower court of an absolute and final order directing the defendant/appellant “to give security for his appearance and satisfy any judgment that may be delivered against him” pursuant to an ex-parte application was lawful and a proper exercise of judicial discretion in the circumstance.

(ii) Whether the learned trial Judge was right in dismissing the application to vacate the orders hither made pursuant to an ex-parte application in view of the affidavit evidence before the court.

(iii) Whether the learned trial Judge was right in allowing respondents’ counsel to use a counter-affidavit in opposition to the applicant’s motion after applicant’s counsel had concluded arguments without giving any excuse whatsoever for so doing in the counter-affidavit.

(iv) Whether the absolute order made pursuant to an ex-parte application violated the applicant’s constitutional right to a fair hearing and pre-empted judicially the outcome of the substantive suit.

The respondents also formulated four issues for determination.

They are as follows:

(a) Whether the grant by the lower court of the relief sought by the plaintiffs/respondents was rightly granted in the circumstance.

(b) Whether the order granted by the court can be said to be an absolute order or an interim one.

(c) Whether the dismissal of the applicant’s application by the learned trial Judge was proper exercise of judicial discretion in the circumstance.

(d) Whether the order made in the circumstance of this case was a violation of section 33(1) of the 1979 Constitution.

I have perused through the issues raised by the parties. The respondents’ issues (a), (c) and (d) correspond with issues (i), (ii) and (iv) in the appellant’s brief while issue (b) in the respondents’ brief is not covered by any ground of appeal and there is no respondent’s notice or cross-appeal to support the formulation of issue (b) in the respondent’s brief as required by Order 3 rules 14(2) and 19 respectively. Any issue formulated in the respondents’ brief must be distilled from appellant’s grounds of appeal. See: Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129; Lori v. Akukalia (1998) 12 NWLR (Pt. 579) 592; U.I.C. Ltd. v. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt. 565) 340. Where an issue does not arise from the grounds of appeal, that issue is incompetent and is liable to be struck out. See Mogaji v. Military Administrator, Ekiti State (1998) 2 NWLR (Pt. 538) 425; Godwin v. C.A.C. (1998) 1 NWLR (Pt. 584) 162; Eagle Construction Ltd. v. Ombugadu (1998) 1 NWLR (Pt. 533) 231. Consequently, I strike out issue (b) formulated by the respondents’ counsel in his brief of argument. In his arguments in the appeal, learned Counsel condensed issues i, ii and iii and took issue iv separately. I prefer the formulation of issues (c) and (d) in the respondents’ brief in the consideration of this appeal as issue (e) encompasses issues i, ii and iii in the applicants’ brief.

As I have already stated above the arguments on issues (i), (ii) and (iii) in the appellant’s brief are dealing with whether the dismissal of the appellant’s application by the learned trial Judge was a proper exercise of judicial discretion in the circumstance. Learned Counsel for the appellant posited that ex-parte orders are interim in nature and can only be granted in extreme circumstances and for an interim basis, until a specific date when the other party would be heard on, why such a prayer should not be granted pending the hearing and determination of the substantive suit. He contended that the applicant must reveal very strong grounds to justify the grant and same must be evident in the affidavit in support of the motion. He submitted that no tenable reason was obvious in the affidavit in support of the respondents’ application as to why the prayers therein should be granted. He said the learned trial Judge ought to have ordered the appellant to show cause why he should not be ordered to give security for any judgment that might be delivered against him. He submitted that the granting of the order on an ex-parte application violated all established rules of practice and procedure and was thus, perverse in law citing the following cases in support: (i) Bright Motors Limited v. Honda Motors Limited (1998) 12 NWLR (Pt. 577) 230; (ii) Enekwe v. I.M.B. Limited (1997) 10 NWLR (Pt. 526) 601 at 611; (iii) Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 440; (iv) Globe Motors Holdings Ltd. v. Honda Motors Co. Ltd. (1998) 5 NWLR (Pt. 550) 373 at 381. He argued that the learned trial Judge failed to look at the merit of the application, when the appellant sought for review of the orders made in his absence, but took a narrow or simplistic view, when he held that there is nothing in Order 15 rule 1 High Court (Civil Procedure) Rules of Edo State to show that the order cannot be made ex-parte. He submitted that where crucial issues to the determination of a case are not addressed by a lower court, it becomes incumbent on the appellant court to examine the issues raised to determine its merits. In this regard, learned Counsel urged this court to construe the rule under which the order was purportedly made vis-a -vis the affidavit evidence to determine the merits of the order made against the appellant. For this submission, learned Counsel for the appellant relied on the following cases: Oke v. Eke (1982) 12 SC 218; Alexander Marine Management v. Koda International Limited (1999) 1 WLR (Pt. 585) 40 at 49. Learned Counsel then referred to Order 15 rule 1 and argued that the said provisions should be construed conjunctively not disjunctively. Making reference to Maxwell on Interpretation of Statutes, 11th Edition, page 121 learned Counsel submitted that statutes or rules of law are construed against infringing on the basic rights of citizens and that an intention to produce an unreasonable result is not to be imputed to a statute if there are some other constructions possible. He argued that the respondent ought to have satisfied the court by cogent affidavit evidence that:

(i) the appellant is about to leave the jurisdiction of the court; and

(ii) has disposed of or has removed from the jurisdiction his property or any part thereof or about to do so.

It was submitted that the respondents failed to satisfy the aforementioned conditions before the order was granted. Reference was further made by learned Counsel to paragraphs 13 and 14 of the affidavit in support of the respondent’s application on 26/1/98, which he considered to be bare, baseless and unsubstantiated averments but which were used by the lower court to make the far reaching order against the appellant. He therefore, urged this court to hold that the order made against the appellant was unjustified in the circumstance.

Turning to the use which he learned trial Judge made of the counter affidavit, it is the view of learned Counsel that it was an error in law for the lower court to have allowed the use of the counter-affidavit filed after appellant’s counsel had argued the motion to vacate the orders made against him on 26th of January, 1998. He urged that same ought to have been discountenanced because the said counter affidavit is devoid of any substance and no cogent excuse was given by the respondents for filing the counter-affidavit belatedly, and this lends credence to the charge that the order was surreptitiously sought so as to prejudice the appellant. He urged quite strongly that the learned trial Judge was oblivious of the fact that the exercise of his judicial discretion was called into play which should be exercised both judiciously and judicially to avoid making an order which is unjust, oppressive and which tended to emasculate the appellant even before pleadings have been filed by either side. He submitted that what was done amounted to an improper exercise of judicial discretion and placed reliance on Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1 at 16. He finally submitted that the learned trial Judge erred in law, in failing to vacate the absolute orders which were made pursuant to the ex-parte application of the respondent and the court was also wrong in its narrow and restrictive construction of the provisions of Order 15 rule 1 of the High Court (Civil Procedure) Rules, 1988 of Edo State.

Learned Counsel for the respondents submitted that the learned trial Judge fully considered the urgent or expeditious nature of the respondents’ ex-parte motion and the order was predicated on the overwhelming affidavit evidence in support of the motion particularly exhibit ‘A’ as well as the further affidavit of the plaintiffs/respondents sworn to, by Mr. Isaac Ogbeide, which showed that the appellant is not ordinarily resident in Benin City but in Athens, Greece, which is outside the jurisdiction of the court. He argued that the learned trial Judge clearly considered the irreparable or serious mischief that would have resulted had the relief not been granted as timeously sought by the applicants. Citing a number of authorities including Kotoye v. C.B.N. (1989) 1 (Pt. 98) 419, learned Counsel submitted that the learned trial Judge was rightly guided by the important factors for the grant of the interim order i.e.

(i) that the appellant must show that he has a legal right to be protected;

(ii) his request is based on the principle of evenness;

(iii) that damages in the matter recoverable at law would be inadequate remedy and the defendant would not be in a financial position to pay him the damages; and

(iv) the exercise of the discretion to grant the order has been exercised judicially and judiciously taking into account all the facts and circumstances of the case.

Learned Counsel further submitted that rules of court are not made for fun or to be treated with levity but must be strictly complied with in the interest of fair administration of justice. He argued that the provision of Order 15 rule 1 High Court (Civil procedure) Rules, Edo State being clear and unambiguous was given its deserved plain and grammatical meaning by the learned trial Judge quoting the dictum of Karibi-Whyte, J.S.C. in Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 to support the contention. If the appellant were to show cause why he should not be ordered to give security for any judgment that might be delivered against him this would be tantamount to putting a strained interpretation on the purport of Order 15 rule 1. The order to show cause by the defendant is invoked when his liberty is at stake especially where an order of arrest or detention is made against the said defendant. Replying to the submissions made by appellant’s counsel that leave was not sought and granted coupled with the court allowing the use of a further affidavit filed after the appellant had argued the notion to vacate the orders made, learned Counsel for the respondents contended that leave was sought by the respondents and granted by the court as can be seen from the record and since it is a discretionary power, it was validly exercised by the learned trial Judge, when he allowed the appellant to respond appropriately after permitting the respondents to file a further affidavit.

The exercise of discretion by the learned trial Judge is the core issue in this appeal. It is an inherent power granted to the Judge for proper administration of justice. While I fully endorse the notion that a Judge should not be unduly fettered in the exercise of his discretionary power, the Judge himself should be very wary and exercise extreme caution when invoking such power so that its use does not appear arbitrary or susceptible to abuse. Ayoola, J.C.A. (as he then was) commented in Globe Motors Holdings Ltd. v. Honda Motor Co. Ltd. (1998) 5 NWLR (Pt. 550) 373 at pages 381-328 thus:

“The readiness of the Federal High Court to issue ex-parte injunctions in such a case as this shows that courts need to be more alert in safeguarding the judicial process from abuse. To issue far reaching ex-parte orders without regard to its consequences and without adequate inquiry does not show a due apprehension of a court’s responsibilities in the awesome powers vested in it in making orders of injunctions.”

The main attributes of an ex-parte injunction include:

(a) It can be made when there is a real urgency but not a self-induced or self-imposed urgency.

(b) It can be made in an interlocutory or interim injunction application, until a certain day usually the next motion day by which time the other side should have been put on notice.

(c) It cannot be granted pending the determination of the substantive suit or action.

(d) It can be granted where the court considered on a prima facie view that an otherwise irreparable damage may be done to the plaintiff before an application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party.

(e) It can be granted where it is necessary to preserve the res which is in danger or imminent danger of being destroyed.

(f) A person who seeks an interim order ex-parte while also applying for an interlocutory injunction, files two motions simultaneously, one ex-parte asking for the interim order and the other on notice applying for an interlocutory injunction; the court before whom the applications come takes ex-parte motion and if satisfied that it has merit ex-facie, grants it making the order to the date when the motion on notice shall be heard.

(g) Although, it is made without notice to the other party, there must be a real impossibility of bringing the

application for such injunction on notice and serving the other party.

(h) The applicant must not be guilty of delay.

(i) It must not be granted unless the applicant gives a satisfactory undertaking as to damages except under

special circumstances.

(j) Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.

See: Kotoye v. CBN (1989) 1 NWLR (Pt. 419); Obeya Memorial Specialist Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325; Commissioner for Works, Benue State v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt. 83) 407; Oniah v. Onyia (1989) 1 (Pt. 99) 514.

It was an injunctive relief, which the respondents sought when they applied under Order 15 rule 1 Bendel State High Court (Civil Procedure) Rules, 1988, applicable in Edo State for an order that security be given for the appearance if the defendant to answer and satisfy any judgment that may be passed against him in the suit in the event of his leaving the jurisdiction of the court before judgment.

The only difference between this application and the one for an injunction simpliciter is that, instead of the applicant giving satisfactory undertaking as to damages, it is respondent that is required to give security for costs upon the applicant satisfying the court that the defendant is about to dispose of his property or any part thereof or is about to remove any such property from the jurisdiction. See: Bepoc Ltd. v. NASCO Management Services Ltd. (1993) 7 NWLR (Pt. 305) 369.

In paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 of the affidavit in support of the Motion ex-parte, Mr. Isaac Ogbeide, the 2nd plaintiff deposed to the following facts:

“3. That the first plaintiff/applicant is the owner of the house known as No. 45, Agbonmoba Street, Off 2nd East Circular Road, Benin City.

4. That 2nd, 3rd and 4th plaintiffs are children and daughter-in-law of the 1st plaintiff, while the 5th and 6th plaintiffs are tenants of the 1st plaintiff who is the landlord (sic) of No.45, Agbonmoba Street, Off 2nd East Circular Road, Benin City.
5. That on the 24th day of December, 1997, the defendant led and commanded about twenty persons whom he had employed for the purpose, in an attack on the aforesaid No. 45, Agbonmoba Street, Benin City, which is a twenty room storey building.
6. That the defendant and his private army of thugs destroyed all the doors, windows and ceiling of the said twenty room storey building and damaged and/or burnt every single item of property found within the said rooms after all the eleven tenants living in the said rooms house had been driven out with axes, cutlasses and cudgels.
7. That the wilful damage perpetrated by the defendant and his agents have been valued at N4,272,333.50k by Odunayo Fatogbe Association, Chartered Quantity Surveyors and Arbitrators.
8. That the plaintiffs have brought a claim for the sum of N4,272.333.50k against the defendant, being damages for his wilful and unlawful destruction of their property.
9. That the defendant is ordinarily resident in England and was only visiting his family in Nigeria when this incident occurred.
10. That the defendant’s family house where he currently resides is at No.45, Agbonmoba Street which is the subject matter of the action.
11. That a few days ago, I observed that the defendant was disposing of his property and making arrangements travel back to his base in England, which is outside the jurisdiction of this honourable court.
12. That I verily believe that the defendant is about to travel back to England and leave the jurisdiction of this honourable court so as to render the claim if successful, useless and unenforceable.
13. That I verily believe that it is in the interest of justice that the defendant gives an undertaking to pay the sum of N4,272,333.50k as security for his appearance to answer and satisfy any judgment that may be passed against him in the suit.
14. That I verily believe that unless this application be granted, the defendant shall travel out of the country and the court shall be presented with a fail (sic) accompli in so far as this case is concerned.

It is possible that there was a real urgency in filing the ex-parte application, but in granting the order, the learned trial Judge should not have made an open order, that was to last pending the determination of the substantive suit since there was no motion on notice filed requiring the applicant to give security for costs.

The interim injunction was needed to keep matters in status quo i.e. to secure the attendance of the appellant to the legal process which the respondents had initiated against him. See: Awofeso v. Oyenuga (1996) 7 NWLR (Pt. 460) 360. It should have been granted for a specifically defined period since it is an interlocutory court process which should abate the moment the application for interlocutory injunction is heard. See Ezebilo v. Chinwuba (1997) 7 NWLR (Pt. 511) 108. But this was not to be since the plaintiffs/respondents did not bother to file a motion on notice. A party against whom an ex-parte order is made can either seek to have it discharged on well known grounds, or wait to have the motion on notice on the same matter contested which event may lead the court to end the life of the ex-parte order or to continue it pending the determination of the substantive suit. See TSA Industries Ltd. v. Abacus Merchant Bank Ltd. (1996) 2 NWLR (Pt. 430) 305; Kotoye v. C.B.N. (supra) at page 440.

Since the plaintiffs failed to file a motion on notice, the defendant/appellant then brought a motion on notice praying for two reliefs, one of which was asking the court to discharge the ex-parte order calling on him to deposit security for cost to satisfy any judgment that may be given against him in the substantive suit. This application which was dated 30/1/98, was supported with an 11 paragraph affidavit in support which was sworn to by the defendant/ appellant, Samuel Igbinoba. In paragraph 8 of the affidavit in support of the motion to discharge the ex-parte order, the appellant deposed to the fact that the appellant to give security for costs was predicated on the fact that the appellant was making arrangement to leave the jurisdiction of the court. Since the respondents did not file simultaneously with the application, a motion on notice, it was incumbent on them to controvert paragraph 8 of the affidavit in support of the motion to discharge the ex-parte order. This was not done and the learned trial Judge allowed the appellant to argue his motion instead of calling on the respondents’ counsel to address him on points of law since no counter-affidavit was file, the learned trial Judge adjourned to enable the respondents to file their counter affidavit before replying to the application which sought to vacate the order on giving security for costs. Learned Counsel for the respondents did not see anything wrong with the procedure which the learned trial Judge adopted since it was done in exercise of his discretion. I do not in the least share this view. The learned trial Judge overreached the respondents to the detriment of the appellant and this is not the proper way to exercise discretion. If he wanted to hold the scales of justice evenly and act as an impartial Judge, it was incumbent on him to give a favourable consideration to the application by discharging the order made ex-parte to give security for costs, since no counter-affidavit was filed to controvert the appellant’s deposition in paragraph 8. Failure to do this leaves one in no doubt in concluding that the principle of fair hearing, which is enshrined in section 33(1) of the 1979 Constitution was breached by the learned trial Judge.

The impression which a reasonable man, who was present at the trial would form is that the Judge tended to favour the respondents more than the appellant. See: Alhaji Isiyaku Mohammed v. Kano N. A. (1968) 1 All NLR 424. The procedure adopted by the learned trial Judge in disposing of exercise of discretionary power. The appellant was entitled to have the ex-parte order discharged.

Consequently, I resolve issues (c) and (d) as formulated in the respondents’ brief in favour of the applicant and hold that the dismissal of the appellant’s application by the learned trial Judge was not a proper exercise of judicial discretion in the circumstance.

The appeal therefore, succeeds and it is hereby, allowed. The appellant is entitled to have the order to give security for costs made against him by the lower court discharged, since it was obtained ex-parte and no motion on notice has been filed, which would have given the appellant an opportunity to show cause why an order to give security for costs to satisfy any judgment, which may be given against him should not be made. I further order that the substantive suit should be heard by another Judge of the Edo State High Court other than Idahosa, J. I assess costs of N2,000 in favour of the appellant against the respondents.

This appeal was deemed argued on the briefs filed in accordance with Order 6 rule 9(e) Court of Appeal Rules, 1981 (as amended), since the respondents were absent together with their counsel when the appeal came up for hearing, even though hearing notice had been served on their counsel.

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Other Citations: (2002)LCN/1272(CA)