Sobie Ojimba & Ors V. Peter Ojimba & Ors (1996)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
The plaintiffs now referred to in this judgment as the respondents sought and were granted leave at the High Court of Rivers State holden in Port Harcourt to commence and institute the action there, in a representative capacity. By their writ of summons they claimed against the defendants hereinafter referred to in this judgment as the appellants the undermentioned particulars of claim:-
“The plaintiffs’ claim against the defendants jointly and severally is for an injunction to restrain the defendants, their agents or privies from installing a chief of OJIMBA Village without the consent of the entire OJIMBA Village and the entire KPEYA War Canoe House of Okrika.”
Immediately after the institution of the action, the respondents applied and were granted interim order of injunction against the appellants.
After service of the writ and the interim order of injunction on the appellants in accordance with the provisions of High Court Civil Procedure Rules of Rivers State because of the type of order of interim injunction granted, appellants applied under the relevant order of Rivers State High Court Civil Procedure Rules for a variation or discharge of the said order of interim injunction. As the mistake of grant of the order was so apparent to the lower court instead of discharging the order it was varied to hold pending the determination of the motion on notice for interlocutory injunction against the appellants.
Respondents eventually applied for an order of interlocutory injunction on notice against the appellants. The relief of interlocutory injunction is hereby set down as below:-
“(i) An interim injunction in the terms of the ORDER of this Court dated 5th day of May 1988 pending the determination of this suit” the relief granted on 5th day of May 1988 was based on the prayers of the  respondent thus:-
“(i) Interim injunction to restrain the defendants, their supporters, privies and collaborators from carrying on the proposed installation of a chief in OJIMBA Village.
(ii) Interim injunction to restrain the defendants, their supporters, privies and collaborators from presenting one CLIFFORD IWERISO OJIMBA as Chief of OJIMBA Village.”
The respondents filed supportive copious affidavit and attached documents marked as exhibits to the motion on notice of interlocutory injunction.
The appellants also filed very lengthy and copious counter affidavit wherein they marked as exhibits the attached documents relied upon by them. Owing to the nature of the facts deposed to in the counter affidavit to meet and deny them the respondents filed a further affidavit in reply to the counter affidavit.
In moving the motion learned counsel for the respondents submitted that the issue was a chieftaincy matter whereby a certain section known as OJIMBA desired to install a chief of their own being a smaller section of a larger part which had just installed the chief for the whole area which included OJIMBA Village, by their act the appellants were introducing new chieftaincy stool contrary to the existing customary law of the area. Should the application be refused it meant imposition of a chief on an unwilling majority. From the deposed facts learned counsel for respondents relied on Obeya Memorial Specialist Hospital v. A.G. Federation & Anor (1987) 3 NWLR (Pt. 60) page 325 and also on Nigerian National Supply Company Limited v. Alhaji Hamajoda Sahana Company Ltd. (1986) 5 NWLR (Pt. 40) page 204, so court should grant the prayer.
On his part learned counsel for the appellants opposed the application that the custom alleged had no legal basis, thereby respondents failed to establish legal right which had been infringed. As the nature of the civil rights alleged to have been violated were not established or shown since chieftaincy matter is not civil right or human rights so observed the Supreme Court in Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) page 539 at 543. The respondents therefore lacked the locus standi to file the action. Reference was made to Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) page 669 at 672. They were busy bodies, so they lacked the locus standi.
He submitted further that the native law and custom was not strictly proved, as there was no evidence of such native law and custom. See Otaru v. Otaru (1986) 3 NWLR (Pt. 26) page 14.
The respondents did not establish that there could not be a return to the status quo and that a refusal would work more hardship on them than on the appellants, thereby that the balance of convenience was in appellants favour. They also failed to show a prima facie case by showing that the case was not frivolous. He referred to Francis Nwugor v. Ugo Abara (1978), Imo State Law Report page 150, Missini v. Balogun (1968) 1 All NLR p. 318.
For the above reasons the appellants urged the lower court to dismiss the application for interlocutory injunction on notice. The argument on the application was concluded on 14th November 1988 with the ruling reserved for 7th December, 1988.
On 17th November 1988 the respondents were granted leave to file their statement of claim out of time.
In a reserved ruling of 7th December 1988, Hon. Justice J.A. Fiberesima of the Rivers State High Court holden at Port Harcourt delivered his ruling and granted the interlocutory injunction order wherein he restrained the defendants/appellants, their supporters, privies, collaborators from installing CLIFFORD IWERISO OJIMBA or any person whosoever as CHIEF OF OJIMBA VILLAGE OR OJIMBA AMA pending the determination of the suit. No reference was made at all about the existence of the statement of claim.
Being aggrieved and dissatisfied with the said ruling the appellants on the 19th day of December 1988 filed their notice of appeal to be found at pages 167 to 172 of the record of proceedings wherein they raised 4 grounds of appeal with the particulars. In their brief of argument at page 1 they raised the following as issues for determination:-
“2. ISSUES FOR DETERMINATION
The issues for determination at the appeal are as follows:-
2.1. Whether or not the respondents have the locus standi to bring the application for interlocutory injunction.
2.2. Should a trial court take an undertaking as to damages from the applicants in an interlocutory application for injunction and if a trial court fails to to do so, what would be the effect of such failure on appeal?
2.3. Whether in the instant case the balance of convenience was in favour of the respondents?
2.4. Whether on the affidavit evidence in support of the application for interlocutory injunction, the applicants have made out a prima facie case for the grant of an interlocutory injunction pending the determination of the substantive case?
At page 2 of the respondents brief of argument paragraph B states as follows:-
“B ISSUES FOR DETERMINATION
- Is there any issue of locus standi made out in this application.
- If the lower court did not take security for damages can the appeal court do so?”
From the foregoing the issues 2.1 and 1 in both briefs are similar and would be considered together. The other issues for determination raised by the appellants are also germane in this appeal, for this reason I adopt the issues for determination formulated by the appellants in the consideration of this appeal.
With respect the issue of locus standi is very fundamental and once raised it must be considered first as it is also intertwined with jurisdiction of a court. A critical look at the contentions of the parties in the lower court the issue seemed not to have engaged the attention of both parties nor was the issue of locus standi raised before the lower court. Can it be raised for the first time on appeal, the answer is in the affirmative so decided the Supreme Court in Bronik Motors & Anor v. Wema Bank Ltd (1983) 6 SC 158-350, (1983) 1SCNLR 296; Oredoyin & Anor v. Arowolo & Ors (1989) 4 NWLR (Pt.114) page 172, Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt.336) page 26 SC. Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) page 377 SC.
It is trite law that when the locus standi of a party is raised in the consideration whether the party has or lacked the locus standi the answer is to be found by the court looking critically at the writ of summons and the statement of claim.As stated above the statement of claim of the respondents was filed after the conclusion of arguments of the parties prior to the ruling of the lower court of 7th December 1988 the subject of complaint in this appeal. There was ominous silence by the learned trial Judge about the existence of the said statement of claim, can this court without argument by the parties on this crucial issue suo motu proceed to consider this issue, the answer is in the negative. This court being an appellate court can only correct the lower court on matters or issues raised before it and upon which the lower court has pronounced or given a decision. As the issue of locus standi is very fundamental so as not to decide in the existing appeal the substantive suit, any comment on the issue is reserved, so as not to step beyond our jurisdiction in this appeal. Issues 2.1 and 1 in the briefs of argument of the parties is kept in abeyance so as not to run foul of the rule of law that an appeal court should be cautious of not determining in the interlocutory appeal the issue to be decided in the substantive suit.
I shall proceed to consider issues 2, 3 and 2.4 of appellants’ issues raised for determination of the brief of argument together. Succinctly put the issues can be put into one issue whether the learned trial Judge exercised his judicial discretion in the grant of the interlocutory injunction whereby he restrained the appellants in the terms of the order of 7th December 1988 already set out above judicially and judiciously. In the unreported judgment of this court in CA/PH/232/91 Between L.A. Gbadamosi & 4 Ors v. Chief Stephen Ikpoku Alete & Anor delivered on 29th day of February 1996 this court dealt exhaustively with the principle to guide this court on interlocutory appeal against the grant of interlocutory injunction by the lower court. I adopt the reasoning and conclusion in the said appeal and to state that issue 2.4 raised in this appeal complained against the affidavit evidence used in the lower court, and based upon it whether the respondents made out a prima facie case that entitled respondents to the grant of the order of interlocutory injunction in their favour.
The learned trial Judge based his ruling on the affidavit, counter affidavit and reply by further affidavit to the counter affidavit. A perusal of the affidavit evidence of the parties with the documents marked as exhibits shows that they are irreconcilably in conflict. In such a situation the rule of law as pronounced by the plethora of the judgments of the Supreme Court some of which are listed below was for the learned trial Judge to call oral evidence to resolve the conflict. The procedure is mandatory on the Judge. The said judgments directed the learned trial Judge faced with affidavit evidence irreconcilably in conflict on his own to opt for taking oral evidence even where the parties did not apply to him to take oral evidence to resolve the conflicts. see Uku v. Okumagba (1974) 3 SC 35; (1974) 1 All NLR (Pt.1) page 475; Olu-Ibukun & Anor v. Olu Ibukun (1974) 1 All NLR (Pt.1) page 513; (1974) 2 SC 41; Mobil Oil Ltd v. Chief J.O. Agadaigho (1988) 2 NWLR (Pt. 77) page 383 SC Falobi v. Falobi (1976) 1 NMLR 169 (1976) 9/10 SC 1. Evbuomwan v. Elema (1994) 6 NWLR (Pt. 353) page 638 SC, Ige v. Farinde (1994) 7 NWLR (Pt. 354) page 42 SC, Union Beverages Ltd v. Pepsi Cola Ltd (1994) 3 NWLR (Pt. 330) page 1SC all followed and adopted in my unreported judgment in CA/PH/232/91 Between L.A. Gbadamosi & Ors v. Chief Stephen Ikpoku Alete & Anor delivered on 29th February (1996) supra.
Applying the above authorities to the instant appeal the failure of the learned trial Judge not to have called oral evidence to reconcile the conflict in the affidavit evidence meant that he did not exercise his judicial discretion judicially and judiciously giving rise as an exception to the attitude of the appellate court that ordinarily or generally it shall not interfere with the exercise of judicial discretion by the lower court unless the learned trial Judge has acted’ under a mistake or misconception or in disregard of principle of law or under a misapprehension of the facts or took into consideration or account irrelevant matters or on the ground that injustice could arise. see Awani v. Erejuwa II (1976) 11 SC 307, Solanke v. Ajibola (1969) 1 NMLR 253, Alhaji Jimoh Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) page 1 SC. Salu v. Egeibon (1994) 6 NWLR (Pt. 348) page 23 SC.
Applying the above authorities to the instant appeal this court has no alternative than to interfere with the exercise of the judicial discretion of the lower court and to say boldly that the lower court exercised his judicial discretion wrongly and this court is empowered to set aside such a decision which amounts to miscarriage of justice see University of Lagos & Anor v. M.I. Aigoro (1985) 1 NWLR (Pt. 1) page 143 SC Odusote v. Odusote (1971) 1 All NLR 221 (New Edition) (1971) 1 NMLR 228, Beluonwu v. OK. Isokariari & Sons (1994) 7 NWLR (Pt. 358) page 587 CA.
Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) page 172 CA.
I therefore resolve issues 2.3 and 2.4 in the appellants’ brief of argument as meritorious leading to the success of the appeal thereby allowing the appeal.
I shall now proceed to consider issues 2.2 and B2 raised in the briefs of argument of the appellants and respondents respectively as to where the lower court which granted an order of interlocutory injunction failed to extract undertaking as to damages what is the legal consequence of the failure as pronounced upon by NNAEMEKA AGU, J.S.C. in the celebrated case of N.A.B. Kotoye v. Central Bank of Nigeria & 7 Ors (1989) 1 NWLR (Pt. 98) page 419 and Ilechukwu v. Iwugo (1998) 2 NWLR (Pt. 101) 99.
The issues are to be resolved within a narrow compass with the answer to be found in decided case of the Supreme Court, especially the recent judgment of Afro-Continental Nigeria Ltd v. Joseph Ayantuyi & 8 Ors (For and on behalf of themselves and as representatives of the Onishere Community of Ifesowapo Local Government Area of Ondo State & 2 Ors reported in (1995) 9 NWLR (Pt. 420) at 411 wherein it was held as follows:-
“(1) The generally accepted principle of law is that, except in recognised case; in an application for an interim or interlocutory injunction a beneficiary of such an order must provide an undertaking in damages. He is usually required to give an undertaking in damages.
He is usually required to give an undertaking to pay all damages caused to the opposing party if the order so granted ought not to have been made. This also recognises that there are situations where the extraction of an undertaking as to damages may be unnecessary. Thus, the trial court has a discretion on the question whether or not to order an undertaking as to damages, but like all judicial discretions it must be exercised judicially and judiciously.
(2) It is not the law that in every order of interlocutory injunction, if there is no undertaking as to damages the order must be set aside. In the case of Kotoye v. CBN (1989) 1 NWLR (Pt. 98) page 419, the Supreme Court did not dismiss the appeal because there was want of undertaking in damages. What it decided was that it is wrong for any court to grant an interlocutory injunction exparte. All the pronouncements on the requirement or necessity of an undertaking as to damages and consequence of failure thereof were merely obiter dicta (Onyesoh v. Nnebedun (1992) 3 NWLR (Pt. 229) page 315 Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt. 387) referred to).
(3) Where the High Court has failed to extract in undertaking as to damages, when making an order of injunction, the Court of Appeal by virtue of the wide powers vested in it under Section 16 of the Court of Appeal Act, (1976), can vary the order by extracting the necessary undertaking as was done in this case on the application of the respondents. This is because the Court of Appeal has powers to make orders which should have been made by the lower court where it deems it necessary so to do.”
My understanding of the above judgment is that failure to extract undertaking as to damages wherein an order of interlocutory injunction had been granted by the High Court is not mandatory in every case, but it shall depend on the circumstances of each case with the trial Judge endowed with judicial discretion to extract or not to extract undertaking as to damages. Failure to extract undertaking as to damages wherein such undertaking as to damages is necessary having regard to the circumstances of the case does not vitiate the order of interlocutory injunction or render such grant to be fatal, where the lower court fails by virtue and under Section 16, Court of Appeal Act Cap 75 Laws of the Federal Republic of Nigeria 1990, the Court of Appeal can extract the undertaking as to damages. In the instant appeal the issue as to extraction as to damages does not arise because the appeal is meritorious, if it had been otherwise where the Court of Appeal confirms the order of interlocutory injunction but the lower court failed to extract undertaking as to damages, the Court of Appeal shall where having regard to the circumstances of the case an undertaking as to damages for the grant of interlocutory injunction is necessary then by virtue and under Section 16 Court of Appeal Act, the Court of Appeal shall extract what it considers reasonable as undertakings as to damages in the peculiar circumstances of each case.
In conclusion as this appeal succeeds for the reasons adumbrated above, I set aside the order of interlocutory injunction of Hon. Justice J.A. Fiberesima, J. delivered at the Port Harcourt High Court on 7th December, 1988 wherein in restraining the appellants by order of interlocutory injunction already stated above he exercised his judicial discretion wrongly thereby leading this Court to reverse and set aside the said order as the complaints and attacks against the said ruling are legally sustainable and justifiable being wrongful exercise of the judicial discretion by the lower court.
Having succeeded in this appeal following the rule of law that costs follow the event. That costs are awarded to compensate the successful party and not to punish the unsuccessful party, I am strongly of the view and opinion that the appellants are entitled to the costs having succeeded in this appeal. I fix and award the cost of N2000.00 as costs in favour of the appellants against the respondents.
Other Citations: (1996)LCN/0235(CA)
