Secondi Bogban & Ors V. Motor Diwhre & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

The respondents as plaintiffs commenced this action before the High Court of Justice, Delta State, sitting at Effurun Judicial Division, wherein the respondents claimed the following reliefs:

(1) A declaration that the plaintiffs are entitled to a statutory right of occupancy, over that piece or parcel of land known as Orhan Ujo land, situate and lying at Obughere Quarters in Orhuwhorun Town in Udu Local Government Area of Delta State, a place within the jurisdiction of this Honourable Court.

(2) The sum of N100,000.00 (One hundred thousand Naira) as special and general damages for trespass committed by the defendants, when defendants broke and entered the said piece or parcel of land sometime in April, 1997.

(3) An Order of perpetual injunction restraining the defendants by themselves, their servants, agents, workmen and/ or privies and all persons claiming under and/or through them from entering, remaining and/or in any way interfering with the plaintiffs’ ownership of the said piece or parcel of land; and

(4) Any other suitable equitable reliefs as this Honourable Court may deem fit to make in the circumstances.

The respondents sought and obtained leave of the court to sue in a representative capacity.

The appellants as defendants filed a motion dated the 7th day of October, 1997, to set aside the writ of summons and/or vacating the order granting the respondents leave to sue in a representative capacity. The respondents then filed a motion on notice on the 14th September, 1999, seeking interlocutory injunction against the appellants. The motion dated the 7/10/97 was argued but not concluded. The motion dated the 14/9/99 was also not argued, when the respondents brought a motion ex-parte dated the 22/2/2001, for an order of interim injunction. The court on the 1st day of March, 2001, granted the order of interim injunction pending the hearing and determination of the motion on notice filed on the 14/9/99.

The appellants on the 16/3/2001, filed a motion seeking the leave of court to discharge the interim order of injunction. The court ruled on the motion to discharge the injunction and dismissed same.

Aggrieved by the ruling of the court dismissing the said motion, the appellants sought and obtained the leave of this court to appeal against the said order of injunction. The appellants filed five grounds of appeal. The grounds shorn of their particulars are as follows:

Ground One: –

The trial court erred in law, when it granted the order ex-parte on 1/3/2001.

Ground Two: –

The trial court erred in law, in refusing to discharge the ex-parte order of injunction.

Ground three:

The trial court erred in law when it held:

“Above in essence, shows why applicant had to bring an application for interim injunction to be heard even though the motion for interlocutory injunction had been filed but not heard. It is my view that if anything, this cannot vitiate the order. The court can vary the order by amending the date on the interlocutory order and order the applicant to move same.”

Ground Four:

The trial court erred in law when it held:-

“On the issue of failure to give an undertaking as to damages by the applicant in the ex-parte application, it is my view that the court can make an order of undertaking even now by varying the order, and therefore failure to order an undertaking to be made is not fatal to the application and would not necessitate this court discharging the order.”

Ground Five:

The trial court erred in law when on 1/3/2001, it granted an order of interim injunction ex-parte.

In compliance with the Rules of this Court, the parties filed and exchanged briefs of argument. In the appellants’ brief settled by his counsel Ikhide Ehighelua, Esq. four issues were formulated for determination of the appeal.

The issues are:

1. Whether the learned trial Judge was right in granting an interim order of injunction in the circumstances of the suit before it, when:

(a) The said order affected only a portion of the entire land which is the subject matter of the suit.

(b) It was clearly shown that the defendants/appellants were in possession of the land.

(c) The parties had started appearing before the court more than three years before the grant of the interim injunction.

(d) The motion on notice on which the interim order was predicated, filed more than one year before the motion for interim injunction, related to the entire area of land, and was supported by separate set of facts different from those on which the interim order was obtained.

2. Whether the learned trial Judge was right in refusing to discharge the order of interim injunction, when no urgency was shown by way of affidavit as to urgency and no undertaking as to damages was extracted from the respondents when the order was granted.
3. Whether the learned trial Judge was right in making an order amending the date of the motion on notice when neither party asked for same.
4. Whether the trial court was right in granting the order of interim injunction when there was pending before the court a motion challenging the competence of the entire suit which motion had been argued, but no ruling had been delivered on the same.

In the respondents’ brief settled by his counsel O. J. Oshevire, Esq., the following four issues were also formulated for determination of the appeal:-

(1) Whether the learned trial Judge was right in granting an interim order of injunction in the circumstances of the suit before it.

(2) Whether the learned trial Judge was right not to discharge the order of interim injunction.

(3) Whether given the circumstances, and the order of interim injunction, the court was right to amend the date of motion on notice.

(4) Whether given the circumstances to grant the order of interim injunction to preserve the res.

At the hearing of the appeal, learned Counsel for the appellants adopted and relied on his brief filed on the 17/2/2004 and urged us to allow the appeal. The learned respondents’ counsel also adopted and relied on their brief deemed filed on the 7/12/2004 and urged us to dismiss the appeal.

The issues as formulated by the respective counsel are virtually one and the same thing, but only differently couched. I will in the determination of the appeal adopt the issues as formulated by the appellant.

The first issue is whether the learned trial Judge was right in granting the interim order of injunction. For the appellant, it was submitted, an order of interim injunction is always an inchoate order which depends on the success of a motion on notice for interlocutory injunction referring to the following authorities:- (1) 7-up Bottling Co. Ltd. & Ors. v. Abiola & Sons Nigeria Ltd. (1995) 29 LRCN 23 at 42 – 43, (1995) 3 NWLR (Pt. 383) 257 (2) Kotoye v. CBN (2000) 16 WRN 71; (3) (1989) 1 NWLR (Pt 98) 419 Unibiz Nig. Ltd v. CBNL Ltd. (2003) FWLR (Pt.152) 71 (2003) 6 NWLR (Pt. 816) 402. It was submitted that the motion for the grant of interlocutory injunction was filed on the 14/9/99, more than one year before the motion for interlocutory injunction was filed on the 22/2/2001. That the prayers sought on the face of the two applications were different in terms in that the motion on notice sought an injunction in respect of the entire portion of the land in dispute, while the interim injunction sought an injunction only in respect of a portion of the land, referring to the case of Orianwo v. Okene (2002) FWLR (Pt.114) 427 (2002) 14 NWLR (Pt. 786) 156. It was submitted that where there are two applications for interim and interlocutory injunctions, the motion ex-parte is filed first before the motion on notice and not vice-versa citing 7-UP Bottling Co. Ltd. v. Abiola (supra) at 44 per Wali, JSC.

It was also submitted that as the parties have started appearing before the court, the court ought not to have granted the order ex-parte especially as the order affected the proprietary interest of the appellants. That a court should not grant an ex-parte order where same would amount to the breach of the right of other party to fair hearing citing Leedo Presidential Motel Ltd v. Bank of the North Ltd. (1998) 61 LRCN 4690 at 4724 (1998) 10 NWLR (Pt. 570) 353; Sabru Nigeria Ltd. v. Jezco Nigeria Ltd. (2000) 8 WRN 149 at 168. That the essence of interim or interlocutory injunction is to maintain the status quo and not to alter the status quo as by the respondents own showing that the appellants are in possession of the land. Learned Counsel cited the following cases:- Lafferi Nig. Ltd v. NAL Merchant Bank Plc. (2002) FWLR (Pt. 109) 1699 at 1713 (2002) 1 NWLR (Pt. 748) 333; Obeya Memorial Hospital v. A.-G. Fed., (2002) 24 WRN 139 (1987) 3 NWLR (Pt. 60) 325; and Kotoye v CBN (2000) 16 WRN 71 (1989) 1NWLR (Pt. 98) 419. It was contended that the interim injunction was granted on a wrong principle of law and urged that this issue be resolved in favour of the appellant.

In his response on this issue, learned Counsel for the respondents submitted that in order to preserve the res which the appellants continued to tamper with, the lower court was right to have granted the interlocutory injunction over the piece/parcel of land except the part containing the story building of the appellant. That the injunction was granted to mitigate the risk of injustice to the respondents until the uncertainty of his legal right or the violation of it could be resolved citing Adenuga v. Odumero (2001) 10 WRN 104; (2001) 2 NWLR (Pt. 696) 184; and Ihunde v. Samson Roger (Nig.) Ltd. (2000) FWLR (Pt. 16) 2782.

On the second issue whether the learned trial Judge was right in refusing to discharge the order of interim injunction when there was no urgency shown and no undertaken to damages was extracted. It was submitted for the appellant that, interim injunction should only be made upon the existence of urgency and the court must extract adequate undertaking as to damages from the party seeking the injunction citing Obeya Memorial Hospital v. A.-G. Fed.,(2000) 24 WNR 38 (1987) 3 NWLR (Pt. 60) 325; Kotoye v. C.B.N. (2000) 16 WRN 71 (1989) 1 NWLR (Pt.98) 419 and Sabru (NIG.) Ltd. v. JEZCO (NIG.) Ltd. (2000) 8 WRN 149, (2001) 2 NWLR (Pt.697) 364 and submitted that the trial court’s conclusion that the failure to extract an undertaking as to damages was not fatal was clearly erroneous and the fact that there was no affidavit of urgency backing the said interim order.

For the respondents it was submitted that the learned trial Judge was right not to have discharged the order of interim injunction as to do so will put the res, the subject matter of the action in jeopardy and a fait accompli.

On the third issue, whether the learned trial Judge was right in making an order amending the date of the motion on notice where neither party asked for same. It was submitted for the appellant that the motion on notice for interlocutory injunction was filed on the 14/9/99 long before the motion for interim injunction was filed on the 22/2/2001. That the order of the court varying its order by ordering the applicant to amend its date on the interlocutory injunction is incompetent as none of the parties asked for an order altering or changing the date of the motion and the court has no power to grant to a party an order not sought from the court, citing the following cases:- Akinterinwa v. Oladunjoye (2000) FWLR (Pt.10) 1690 at 1703, (2000) 6 NWLR (Pt. 659) 92; A.-G. Fed., v. A. I. C. Ltd. (2000) WRN 96, (2000) 10 NWLR (Pt. 675) 293; and Fabiyi v. Adeniyi (2000) 6 WRN 41 at 49; (2000) 6 NWLR (Pt.662) 532. Learned Counsel urged us to resolve this issue in favour of the appellant.

For the respondents, it was submitted that from the circumstances and the interim order having been granted, the court was right to amend the date of the motion on notice. It was also submitted that the mere filing of an application does not give it life, until it is moved and granted by the court and that since the motion ex-parte was moved first and granted before the motion on notice, it was by virtue of this fact being regularised.

On the fourth issue, whether the trial court was right in granting the order of interim injunction when there was pending before the court a motion challenging the competence of the entire suit which motion had been argued, but no ruling delivered, it was submitted for the appellants that the appellants filed a motion on notice on the 7/10/97 challenging the competence of the entire suit and the court heard arguments in respect of the said motion. That the said motion was still pending and no ruling delivered when the court granted the orders of injunction sought by the respondents on the 1/3/2001. It was further submitted that once the issue of the competence of any fact is raised before the court, the jurisdiction of the court is called into question and the court cannot do anything in the suit until the issue of jurisdiction or competence is determined one way or the other citing:- Enweremadu v. Ohajuruka (2000) FWLR (Pt.03) 472 at 478 where Ikongbeh, JCA held inter alia: –

“Once the jurisdiction of court is called into question, it becomes powerless to do anything in the cause or matter before it other than to inquire into the existence or lack of jurisdiction to entertain the cause or matter, it cannot do anything in furtherance of the cause or matter.”

That the trial court having heard the motion challenging the competence of the suit before it, had no power to make any other order in the suit until the issue of the competence of the entire suit was laid to rest. The court was urged to determine the issue in favour of the appellant.

For the respondents, it was submitted that the essence of injunction is to preserve matters in status quo until a motion on notice can be heard, that since in this case, the motion on notice could not be heard due to various reasons and the appellants continued to tamper with the subject matter, the decision of the court to restrain the appellants was proper in the circumstances.

I will proceed to resolve these issues as argued by counsel. The first issue relates to the grant of the interim injunction by the trial court, whether it is right to grant same in the circumstances of the case. The principle of law regarding the right to grant or refuse interim injunctions are well stated in our Law books. The Supreme Court in Kotoye v. C.B.N. (supra) at page 440, the court per Nnaemeka-Agu, JSC, observed:

“I think it is correct to say that ‘ex-parte’ in relation to injunctions is properly used in contradistinction to a motion 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, that is 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 applications 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’.”

The basis therefore for granting an ex-parte order of injunction is the existence of special circumstances, invariably, all pervading real urgency, which requires that the order must be made, otherwise an irretrievable harm or injury would be occasioned to the prejudice of the applicant. This simply means that, if the matter is not shown to be urgent there is no reason why ex-parte order should be made at all. The existence of real urgency is a sine qua-non for a proper ex-parte order of injunction. In the instant case, there was a motion on notice filed before the trial court for interlocutory injunction since the 14/9/99 more than 18 months before the motion ex-parte for interim injunction was filed on the 22/2/2001, when the parties have started appearing before the court. In the motion ex-parte, the respondents sought for the following reliefs:

1. An order of interim injunction restraining the 1st, 2nd and 3rd defendants/respondents jointly and/or severally by themselves, agents, workmen and/or privies and all persons claiming in anyway from alienating, selling, clearing or entering, pledging or dealing in anyway with the Orhan Ujo Land between Ekrejegbe and Okoro family land along Oghorode Road, lying and situate at Obughere Quarters, Orhuwhorun Town save for the plot with the completed storey building pending the hearing and determination of the motion for interlocutory injunction.
2. An order of interlocutory injunction restraining the defendants/respondents by themselves, their agents, servants, workmen and/or privies and any person claiming in anyway from entering, erecting, building or interfering, meddling or dealing in any way with the Orhan Ujo Land between Ekrejegbe and Okoro families land along Oghorode Road, lying and situate at Obughere Quarters Orhuwhorun Town pending the hearing and final determination of the motion on notice.”

It was contended by the respondents that the appellants have continued to tamper with res and the trial court was justified in granting the interim injunction. The interference with res alleged by the respondents was that the appellants were making moves to sell the land the subject matter of dispute to a named person. From the principle enunciated above, the circumstances to justify the grant of the ex-parte order must be such that in the time available, it is impossible or extremely difficult to put the respondents on notice early enough to prevent the injury sought to be restrained. Making moves to sell the land in dispute is not a matter of real urgency, pervading real urgency that would not necessitate putting the respondents on notice. The suit was filed before the trial court since 1997. There was a motion before the court for interlocutory injunction filed since 1999. The motion ex-parte was filed in 2001, while the parties were already before the court. The trial court ought to have directed the motion on notice already filed before the court to be heard instead of proceeding to hear and grant the interim injunction sought, notwithstanding the motion on notice already filed before the court. From the facts in the instant case as can be gleaned from the affidavit evidence in support of the motion ex-parte for interim injunction, there was absolutely no basis for the grant of the interim injunction as there was no deposition whatsoever showing extreme urgency necessitating the grant of an interim injunction ex-parte by way of affidavit of urgency. Trial courts should be reluctant to make interim orders ex-parte unless the circumstances are exceptional and the opposing party cannot be put on notice. The order of interim injunction ought not to have been made in the circumstances of this case. The court ought to have directed the motion on notice to be heard instead of proceeding to hear the motion ex-parte and it was therefore a wrong exercise of discretion to hear the application ex-parte to restrain the appellants when there was no question of real urgency involved and is therefore a clear breach of the appellant’s rights to fair hearing as enshrined under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. See Also, Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (supra); Sabru Nigerian Ltd. v. Jezco Nigeria Ltd. (supra). Since the parties were already before the court for the substantive suit, any application made by either party during the pendency of the suit should have been made on notice and not on ex-parte application. This issue is therefore resolved in favour of the appellants.

With respect to the second issue, whether the learned trial Judge was right in refusing to discharge the order of interim injunction when there was no affidavit of urgency filed and no undertaking to damages was extracted.

The jurisdiction to vary or discharge an order made ex-parte is almost always rested in the court that made it. It might be by the same or another Judge of the same court. See S.A.P. (Nig.) Ltd. v. C.B.N. (2004) 15 NWLR (Pt 897) 665.

By virtue of Order 8 Rule 11 of the High Court Civil Procedure Rules of the defunct Bendel State applicable to Delta State, where an order is made ex-parte, any party affected by it may either within seven 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 may, on notice to the party obtaining the order either refuse to vary or discharge it or may vary or discharge it, with or without imposing terms as to costs.

This simply means that ex-parte injunctions should not normally be more than seven days after which the party affected by the order may have applied for the order to be varied or discharged. No order made ex-parte shall last for another seven days or such further time as the court shall allow after the application to vary or discharge it had been concluded.

While the court has a discretion to refuse the application discharging the interim order, such a discretion must be exercised judicially and judiciously. The grounds for setting aside or discharging an order of interim injunction made ex-parte are clearly well stated. They include inter alia where the application was granted on a supression or misrepresentation of material facts or it was irregular.

The learned trial Judge in his ruling at page 61 of the record of appeal, held;

“that there is nothing to show that the applicants had suppressed any facts in obtaining the order ex-parte.

Indeed, on the contrary, it is my view that he exhibited the facts, relied on copiously, even with exhibits.”

I consider paragraphs 8, 9 and 10 of the respondents’ application for the ex-parte interim order of injunction heavily relied upon by the trial Judge relevant in the determination of this issue. The paragraphs provides as follows:

(8) That because our prayer for interlocutory injunction have not been moved and granted, the defendants have continued to deal with all land to the extent of making moves to selling a part to one Chief Siakpere after hurriedly completing a storey building. Herein attached is the photograph of the completed building exhibited and marked exhibit ‘A’.

(9) That the said Chief Siakpere has insisted that for him to make payments the defendants must establish acts of ownership by digging a well on the land as well as trips of white sand on the land for four months to convince him to pay which they have done. Attached and marked exhibit ‘B’ is a photograph of the part about to be sold.

(10) That the defendants are also making moves to sell the other plots that make up the subject matter of this suit.

Attached and marked exhibit ‘C’ is the photograph of part of the other plots the defendants are making move to sell.

The italics is mine for emphasis.”

These paragraphs as the learned trial Judge wants us to believe do not portray the urgency necessary in granting the order ex-parte, while there was already a pending motion on notice before the lower court for interlocutory injunction. What was averred were moves to sell the part of the land not that the sell transaction would have been immediately concluded. The exhibits attached are photographs of the land in dispute, they are not evidence of a concluded sell transaction. These averments are clearly misrepresentation of facts to the court below. The interim order of injunction was granted on the 1st day of March, 2001. The motion to discharge the interim order of injunction was filed and dated 16/3/2001 and ruling therein delivered on the 15th October, 2001, refusing to discharge the interim order of injunction. Where an ex-parte order is based on an important misstatement, the court should not hesitate to discharge the order at once. In the instant case, where there was a misstatement by the respondents in their ex-parte application as to actual stand of the appellants with regard to the sale of the land in dispute, and in putting before the court the real urgency to dispose of the land in dispute, the interim injunction made should have been discharged by the trial court without much a do. See Okeke v. Okoli (2000) 1 NWLR (Pt.642) 641: Okechukwu v. Okechukwu (1989) 3 NWLR (Pt.108) 234.

The rationale for 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 irretrievable or serious mischief. An injunction is a serious matter and must be treated seriously. Unibiz (Nig.) Ltd. v. C.B.C.L. Ltd. (2003) 6 NWLR (Pt.816) 402. It is a preservatory measure taken at an early stage in the proceedings. Al-Catel Kabelmetal (Nig.) Plc. v. Ojugbele (2003) 2 NWLR (Pt. 805) 429. The order of interim injunction is not meant to provide a temporary victory to be used against an adverse party ad-infinitum. It should not be allowed to hang on the opposing party.

The duration of its potency is always limited to a short period. See Order 8 Rule 11. Courts must ensure that an ex-parte order of injunction is not allowed to over stay. Delay or inaction is not tolerated by the court and the counsel to the party that obtained an interim order should act very fast to see that all that needs to be done in order not to make it as if getting the ex-parte injunction was all that concerned him. Based on the foregoing, the learned trial Judge ought to have discharged the order of injunction when no urgency was shown in the application and his failure to do so occasioned miscarriage of justice. This issue is also resolved in favour of the appellants.

I now move to issue number three, whether the learned trial Judge was right in making an order amending the date of the motion on notice when neither party asked for same.

A court has no jurisdiction to give a party a relief he has not asked for. In the present case, the respondent did not ask for amendment of the date of the motion on notice either by way of motion or even Vica-voce. See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Ayangboye v. Balogun (1990) 5 NWLR (Pt. 151) 392. The Supreme Court said per Karibi Whyte, JSC, at page 1714 in Akinterinwa v. Oladunjoye (supra). Page 117 of NWLR

“It is both fundamental and an elementary principle in the determination of actions before a court or tribunal, that the adjudicating body is bound to limit itself to the claim before it. A court may make incidental orders which follow naturally from the relief claimed and to strengthen the relief claimed. A court has no power, and is not under any circumstances entitled to award a relief not claimed by the party in the writ of summons and statement of claim. See Egonu v. Egonu (1978) 11- 12 SC 111; Obioma v. Olomu (1978) 3 SC 1; Chief Registrar v. Vamos (1971) 1 SC 33. Elumeze v. Elumeze (1969) 1 All NLR 311.”

See also A.-G. Fed., v. A.I.C. Ltd. (2000) WRN 96 (2000) 10 NWLR (Pt. 675) 293; Ifabiyi v. Adeniyi (2000) 6 WRN 41.

The motion on notice for interlocutory injunction was filed on 14/9/99 while the motion for interim injunction was filed on 22/2/2001. In his ruling granting the interim order of injunction the lower court ordered the applicant to amend the date on the motion for interlocutory injunction on the ground that the order of interim injunction made did not specify what date the interlocutory injunction was filed. What was not clear from the record was the nature of the amendment. Was it to amend the date of the motion on notice to read a date after the motion for interim injunction was granted.

Whatever be the nature of the amendment, that amendment of the date was not asked by any of the parties before the court and the court therefore has no business to grant it and it is not an amendment that follow naturally from the order made by the lower court. It is my view that if the amendment was to bring the application for interlocutory injunction forward as if it was filed together with the application for interim injunction or immediately thereafter, then such an amendment, with respect, is fraudulent in the circumstances of the present case. It is not therefore a judicious exercise of discretion. It is not one that can be said to be granted under Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria.

The argument of the respondents’ counsel on this issue is totally misconceived. A person makes his application to the court at the time he files his application. By the time the application is filed, life is being given to it and it stands as subsisting application pending before the court and the moving of such an application is at the discretion of the court. To say as did the respondents’ counsel that life is not given to the application until when it is moved is therefore a misconception of the rules of court. Where a person prepares the application and did not file it in court, then he has not given life to it.

He may decide not to file it at all. He may keep it, retain it or abandon it, so long as it has not been filed in court, no life has been given to it.. It is just like commencement of action by means of any of the processes of court as provided by our rules of court. Once a person has taken out a writ of summon or any of the originating processes against a party, he is said to have commenced the action against that particular party and life is given to the writ or originating process as soon as it is filed and not when hearing commences in the matter, when life could be said to be given to the process by which the action was filed. Assuming an application which was duly filed in court is adjourned several times before it is heard, can it be said that the application has not been given life? I think not. It is also my view based on the above that this issue is also resolved in favour of the appellant.

This has now brought me to the fourth and final issue for determination in this appeal and this is whether the trial court was right in granting the order of interim injunction when there was pending before the court a motion challenging the competence of the entire suit which had been argued but the ruling has not been delivered.

It is settled law that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal. Jurisdiction is regarded as a threshold issue and a life line for continuing any proceedings, that objection to jurisdiction ought to be taken at the earliest opportunity provided there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction the entire proceedings are a nullity no matter how well conducted. See Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (Pt.30) 617; Barclays Bank of Nigeria v. C.B.N. (1976) 6 SC 175; Aloha v. Akereja (1988) 3 NWLR (Pt. 84) 508; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350: Jeric (Nig.) Ltd. v. U. B.N. Plc. (2000) 15 NWLR (Pt. 691) 447 and NDIC v. C.B.N. (2002) 7 NWLR (Pt. 766) 272.

It is always in the interest of justice to raise the issue of jurisdiction at the earliest opportunity so as to save time and costs and to avoid a trial in nullity. See Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675, at 693 where Belgore, JSC, said:

“It is desirable that preliminary objection be raised early on issue of jurisdiction, but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva-voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”

See also Enweremadu v. Ohajuruka (supra) at 478 when Ikongbeh, JCA held inter alia:

“Once the jurisdiction of court is called into question, it becomes powerless to do anything in a cause or matter before it other than to inquire into the existence or lack of jurisdiction to entertain the cause or matter, it cannot do anything in furtherance of the cause or matter.”

In the instant case, the appellant had filed a motion before the lower court on the 7/10/97, challenging the competence of the entire suit. The court heard arguments in respect of the said motion. The motion was still pending and no ruling delivered when the court heard the ex-parte motion and granted the injunction sought. Based on the above, the lower court ought not to have heard the motion and grant the injunction. It would have delivered its ruling on the motion challenging the competence of the suit before it since arguments have already being concluded. Courts have been cautioned several times to always jealously guard their jurisdiction not to embark on an exercise in futility. The issue of jurisdiction is a fundamental prerequisite in the adjudication of any matter. Where a court does not have the jurisdiction to entertain a suit before it, the proceedings however well conducted, will be a nullity. Once the issue of jurisdiction is raised, it should be determined by the court.

It is always in the interest of justice for the court to hands off the matter and enquire into the existence or lack of jurisdiction to entertain a cause or matter before it. It cannot do anything in furtherance of the cause or matter. In the circumstances, the learned trial Judge would have determined the issue of jurisdiction raised before him before embarking to hear the motion ex-parte and grant the ex-parte injunction sought. This is clearly erroneous. This issue is also resolved in favour of the appellants.

Finally, with the resolution of all the issues formulated in this appeal in favour of the appellants, the appeal succeeds and it is hereby allowed by me. The ruling of the lower court delivered on the 15/10/2001 is hereby set aside. The order of interim injunction made on the 1/3/2001 is accordingly discharged. The costs is assessed and fixed at N3,000.00 only.

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Other Citations: (2005)LCN/1747(CA)