The Owerri Municipal Council & Ors. V. Innocent Onuoha & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

This appeal is against the decisions of Hon. Justice F.I. DUROHA-IGWE of Imo State High Court, dated 14th March, 2002 in suit No. HOW/48/2000. The trial court granted an order of interlocutory injunction against the Appellants in favour of the 1″ set of Respondents, who were the plaintiffs. The court also extended time to them to file their pleadings out of time. The subject matter of the suit in the trial court is contractor financed market shops constructed by the Appellants. The claim of the plaintiffs was as follows:

“1. A declaration of court that it is wrong for the Respondents to seek to demolish, dismantle or, reconstruct, the stalls, stores in the New Market Motor Park without any specific arrangement with the Allottees or provision for them upon completion of the new stores and without any arrangement for alternative accommodation.

2. An order of court restraining the defendants from evicting the plaintiffs or commencing any stores construction work at the New Market Motor Park or reconstructing the stores or converting the stores into storied buildings without any agreement retaining all the Allottees in their old stores.”

The nature of the orders of the learned trial Judge after the order of injunction, were as follows:

“1. That the Plaintiffs/Applicants must file their statement of claim in his suit and serve same on the Respondents on or before the 21st of March, 2002.

2. That this substantive suit when filed will be given accelerated hearing.”

The court then adjourned the case to the 15th of May, 2002 for motions on joinder.

It is against these orders of the trial court that the Appellants felt aggrieved and appealed to this court on five grounds.

Learned counsel for the respective parties, in compliance with the practice and procedure prescribed by the Rules of this court filed and exchanged their Briefs of argument. The Appellants brief dated 6/10/2002 was filed on 21/10/2002. Pursuant to the motions brought by the two sets of Respondents for extension of time to file their Briefs, time was extended for them to file their Briefs. The 1st set of Respondents brief dated 12/8/2003 was deemed filed on 23/5/2006. The 2nd set Respondents brief dated 9/1/2006 and filed 18/112006 was deemed filed on that date.

On 27/1/2009 this appeal was heard. Learned counsel for the Appellants, P.E. CHIMA Esq., adopted and relied on the Appellants’ brief of argument dated 6/10/2002 and filed on 21/10/2002 as his submissions and arguments in support of the Appeal. He urged the court to allow the appeal; set aside the orders made by the trial court; and transfer the substantive suit for trial by another judge of the High court of Imo State. F.C. DIKE Esq. who appeared for the 1st set of Respondent’s also adopted their brief of argument filed on 23/5/2006 as his submissions in response to the appeal. The 2nd set of Respondents’ brief was adopted and relied by their counsel, I.K. UDEOZOR Esq. He also urged the court to dismiss the appeal in part, but urged this court to sustain the order of the trial court, extending time to the Respondents to file their statement of claim.

In the Appellants’ brief of argument Two Issues were formulated and presented for determination in the appeal as follows: ”

“(i) whether the trial court was right to have granted interlocutory injunction to the plaintiffs on the entire circumstances of that application?

(ii) whether the trial court was right to have extended time for the plaintiffs to file their statement of claim without any application for same and in all the circumstances of this case?”

On his part learned counsel for the 1st Respondents adopted the two issues formulated by the Appellants but summarized them as follows:

“(i) whether the court was correct in granting the application for interlocutory injunction.

(ii) whether the court was right in extending time to file statement of claim to the plaintiffs.” Learned counsel for the 2nd set of Respondents, on his own part adopted in its entirety the issues presented for determination of the appeal by the Appellants and reproduced same in paragraph 2 of their brief of argument.

Now to the issues raised by the parties. On Issue No.1 the learned counsel for the Appellants has submitted that the trial court did not act judicially and judiciously in granting an order of interlocutory injunction in this case. That most of the factors which must play in the exercise of the discretion of the trial court were not properly applied in this case. These factors are listed as gross guilty of delay on the part of the applicants; Reliance was placed on the case of EZEBILO V. CHINWUBA (1997) 7 NWLR (Pt.511) 108 at 129; existence of prima facie legal right, in favour of applicant seeking interlocutory injunction. See KOTOYE V. CBN (1989) 1 NWLR (Pt.98) 419, and EZEBILO V. CHINWUBA (supra); an abuse of process of court. See ADEWALE BELLOW CONSTRUCTION CO. LTD. V. I.B.W.A. LTD. (1991) 7 NWLR (Pt.204) 498 at 507; M.V. SCHEEP V. M.C. AREZ (2001) FWLR (Pt.34) 543; KOTOYE V. SARAKI (1991) 8 NWLR (Pt.211) 638 at 648. Contenting further the merit and nature of the order granted by the trial court, learned counsel for the Appellants submitted that, the order made exceeds the scope of the plaintiffs’ claim.

It is submitted by the counsel for both set of Respondents that the balance of convenience was in favour of the Respondents and that the trial judge was right to grant the injunction as there was a res to be protected by the grant. On the issue of delay it is contended that there was an application for extension of time to file statement of claim of the plaintiffs.

Learned counsel for the 2nd set of Respondents submitted that the learned trial judge did not consider some of the factors in granting an application for interlocutory injunction. These include whether there is a serious question to be tried by the court, and if so whether the Applicant for order of injunction has a possibility of succeeding at the trial and whether damages can assuage the injury to be sustained by the Applicant of the order is not made.

The Issue No.(ii) is whether the trial court was right to have extended time for the plaintiffs to file their statement of claim without any application for same and in all the circumstances of this case.

Appellants have contended that there was no application for extension of time for the plaintiffs to file their statement of claim and extension is not granted as a matter of course. It is submitted that the party applying for extension of time to file statement of claim, must show sufficient excuse for the delay unless compelling serious issues of law are involved. Reliance was placed on the case of UKWU v. BLINGE (1997) 8 NWLR (Pt.515) 527 at 539 and order 22 Rules 223(i) and (ii) of the Imo State High court (Civil Procedure) Rules 1988. It is further submitted that an adverse party is entitled to a hearing before extension of time may be granted.

That to deny a party a hearing is a denial of fair hearing and this violates the proceedings. Reliance was placed on the cases of ENIGWE v. AKAIGWE (1992) 2 NWLR (Pt.225) 505 at 535; OKAFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR (Pt.200) 659 at 678 and DENGE V. NDUKWUJI (1992) 1 NWLR (Pt.216) 221; and ODOGWU V. ODOGWU (1992) 2 NWLR (Pt.225) 539.

1st set of Respondents have contended that the court was right in granting extension of time for the plaintiffs to file their statement of claim. It is submitted that the appellants have not shown how the grant has prejudiced them. More so that they had for long filed motion before the lower court for extension of time since 19/7/2000.

On their part 2nd set of Respondents have also submitted that by virtue of Order 47 Rule 1 of the

Imo State High court (civil procedure) Rules, 1988, the trial court was right in extending the time within which the plaintiffs may file their statement of claim, having regard to the circumstances of the case. This submission is made upon the ground that the order did not in any way prejudice the Appellants.

Now to the two Issues presented by the parties for determination of the appeal. I shall first consider the first Issue. I have already briefly exposed the facts leading to the dispute. The question in this issue is whether the trial court was right to have granted interlocutory injunction to the plaintiff in the entire circumstances of that application. It is the contention of the Appellants and the 2nd set of Respondents that the interlocutory injunction granted to the plaintiffs, 1st set of Respondents, herein, was unjust and unwarranted because the application lacked merit as it was an abuse of court process. An order of interlocutory injunction is granted upon exercise of discretionary power of the Judge in his equitable jurisdiction. Like with all other discretions, the Judge must act judicially and judiciously on the facts placed before him. It is necessary that the trial judge should follow the principles or factors for considering the application. See AMACHREE V. INTERNATIONAL CIGARETTE COMPANY LTD. (1989) 4 NWLR (Pt.118) 686; OGBONNAYA V. ADA PALM (NIG.) LTD. (1993) 5 NWLR (Pt.292) 147 and EZEBILO V. CHINWUBA (1997) 7 NWLR (Pt.511) 108 at 129. Some of the factors which will guide the judge in the exercise of his discretion are as follows:

1. Delay – A reprehensible conduct of an applicant may deny him of the grant of interlocutory injunction. When an application cannot explain the cause of the delay or where the defendant breaches or disobeys an earlier, order of interim injunction, the court will not be inclined to granting the application for interlocutory injunction. See ODUNTAN V. GEN OIL LTD (1995) 4 NWLR (Pt. 387).

At page 97 lines 28 – 32 of the records the learned trial judge observed thus:

“The defendants/respondents again argued that since the plaintiffs had not filed their statement of claim and was thereby out of time, they are in detent and guilty of delay and therefore this court cannot grant their prayers for interlocutory injunction.”

At pp. 24-25 the learned trial judge had earlier condoned undue delay of the plaintiffs in the prosecution of their case. See page 25 lines 15 – 20 of the records.

It is pertinent to note that these same plaintiffs/1st set of Respondents still had their earlier Motion on Notice filed on 14/2/2000, for the very same relief of interlocutory injunction pending on record, (see page 14), when they again filed a fresh Motion on Notice containing the same relief on 6/4/2001. (See pp 66 – 70 of the record). Their affidavit at page 69, in support of that motion acknowledged the fact of the existence of their earlier application. It was not explained on that affidavit why their earlier application could not be argued or why they delayed up to 6/4/2001, for a period of one year two months before filing a new application. The earlier application was never withdrawn. It has been said that being a relief in equity a party who seeks an order of interlocutory injunction must not be guilty of undue delay. See EZEBILO v. CHINWURA (supra) at p.128 A – B & D – E.

In paragraph 4.05 of the Appellant’s brief of argument; our attention has been drawn to the decision of the trial court that:

“There is nothing in both the affidavit and the counter affidavit to show that the plaintiff did not diligently prosecute their application. Therefore I am satisfied that the plaintiffs were not guilty of any delay.”

I agree with the learned counsel for the Appellant that this decision is at variance with the earlier remarks made by court at pages 24 to 25 thus:

“On the 15th day of February, 2000 this Honourable Court made an interim order against the defendants and fixed the substantive Motion for hearing for the 2nd day of March, 2000. On that day half way arguing the motion it was adjourned with the agreement of counsel to this day by 11am. The court bent over to accommodate the parties. Today the counsel for the plaintiffs N.B.E. Nwigwe Esq. wrote telling me that the agreement to come by will no longer stands, he is in another court after which he will be going to the Imo State House of Assembly “to present the N.B.A. stand on Imo State university alleged riot”. He will come to court after that or that I should adjourn to “Tuesday or Wednesday next week, that is, 25th or 26th April, 2000″

I hate to recall my stand on these interim orders. Once one gets this order to his advantage and decides to flag by, I shall decline to aid such a party.

I am by this therefore discharging the Exparte order made by me on the 15th day of February, 2000 order Exparte order of 15th day of February, 2000 is hereby discharged.”

At page 24 of the record the trial court clearly observed that:

“On that day half way arguing the motion, it was adjourned with the agreement of counsel to this day by 11. am. The court then bent over to accommodate the parties.”

It is on record as stated above that the court had commenced taking argument on the earlier motion on notice. The 1st Respondents never explained why they did not conclude that argument and they never applied to withdraw the said motion. I agree with the Appellants’ counsel that even if they did apply to withdraw it, the proper order the trial court would have made in the circumstance, was to dismiss the application, because issues had fully been joined on the matter. Assuming that the earlier application was abandoned, nothing in the record that it was and the reason for that. All the same, the Respondents have been guilty of delay. The court cannot so clearly hold them guilty of delay over the prosecution of an application for injunctive order in 2000 and 2002 and turn round to hold that the same party was not guilty of delay in the prosecution of the same application for the same relief. The 1st Respondents have given us the impression that their uppermost interest was to secure an order of injunction as they did before and then go to sleep away. This is an abuse of process of court. Abuse of process of court occurs in many circumstances, which include multiplicity of the same processes between the same parties in the same or other courts and the deployment of the processes for purposes other than those intended by law. See ADEBOWALE BELLO CONSTRUCTION CO LTD v. I.B.W.A. LTD (1991) 7 NWLR (pt.204) 498 at 507. It is an abuse of judicial process for a party to file a process, commence argument on the process only to file a similar process long after for the same objective, without first dispensing with the earlier process against the same adversary. Where abuse of process of court occurs, the court has not only the power but also a duty to dismiss the offending process. See FUMUDOH v. ABORO (1991) 9 NWLR (Pt.214) 210; KOTOYE V. SARAKI (1991) 8 NWLR (Pt.211) 638 at 648 and OKAFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR (PT.200) 659 at 681.

Also one of the factors to be taken into account in application for interlocutory injunction is the existence of legal right prima facie in favour of the applicant. The Respondents averred that they were traders in their independent rights in paragraph 5 and 10 of their supporting affidavit. They alleged in these paragraphs at best, a relationship of a landlord and tenant, between each of them and the 1st Appellant. They claim this relationship was created at various times. But from their claim in the writ of summons at pp. 1 and 2 of the record produced above, the prayers are inchoate. The writ was filed on 14/2/2000. It is instructive to note that as at 1/2/2002 when the application on Notice was argued, about two years after the suit was filed, no statement of claim had been filed by the plaintiffs. It is trite that the court can only search and see the plaintiff s cause of action in their writ of summons and the affidavit in support of their application (see pp 68 – 70 of the record). Paragraphs 5 to 10 of the affidavit are only basis on which the Respondents relied on for their application. Pages 35 to 42 are some of the Allocation papers for the lock-ups/open shops/stalls at Owerri New Market park. These were Exhibits ‘A’ to ‘A11′ attached to paragraph 4 of the Further and Better Affidavit in support of the motion. But in paragraph 5 of the affidavit in support of the motion of 2/4/2001 on page 69 did not name any allottee of the sample Allocation paper. Again none of the allottees on pages 3 to 42 is a party to this suit. The only useful purpose of those Allocation papers is to show that the 1st Appellant allocates its shops or stalls by means of a written instrument. I agree with the learned counsel for the Appellants that the only prima facie evidence on which the 1st set of Respondents could rely to disclose a justifiable interest in the suit is to exhibit either their joint or several allocation papers. At paragraph 8 of the Appellants counter-Affidavit in respect of the motion on page 76 of the record the 1st Respondents were duly challenged to produce any allocation papers in their favour. Yet in their further affidavit filed on 21/5/2001 they did not find it necessary to produce any allocation paper in favour of any of them. A triable issue cannot exist outside a justiciable right. Triable issue precedes justiciable right. Existence of a justiciable right privilege or interest and triable issue is fundamental. These must exist and be laid before the court may proceed to consider any other issues. See KOTOYE V. C.B.N. (1989) 1 NWLR (Pt.98) 419 and OYEYEMI & ORS V. IREWOLE LOCAL GOVERNMENT ITIRE & ORS (1993) 1 NWLR (Pt.270) 466.

A part from the lack of justiciable right, the existence of abuse of judicial process and inordinate delay, the Respondents’ application still ought not have been granted on the question of balance of convenience. Where the balance of convenience favours an application, the trial court ought to grant the application. In the instant case if the trial court had considered the balance of convenience which was on the side of the appellants it ought not have granted the Respondents the injunction. From the averments in the affidavits and counter-affidavits of the parties and the submission of counsel the following facts emerge: that the stalls/shops which belong to the 1st appellant were for letting to the public and they were contractor financed. The 1st set of Respondents was not in the stores at the material time. They were willing to accept the new allocation of stores if they were given (see paragraph 17 of their Affidavit on page 80. An order of interlocutory injunction whose effect is that all the stalls/shops built by the 1st Appellant have remained unused since the suit was filed cannot be justified. This is a case in which award of damage will be adequate if the 1st set of Respondents ultimately succeed.

The foregoing apart my perusal of the nature of the order granted the 1st Respondents shows that the couching of that order leaves it open to uncertainty of interpretation. It is noted that this instant case is all about many stores/stalls out of which the 1st Respondents are claiming an uncertain number. I agree with the learned counsel for the Appellants that at best the number which they put up in paragraph 8 of their affidavit on page 69 of the record is “that there were more than 70 of us—” If the order of the trial court pertains to all the stalls or stores” then it exceeds what the Respondents are claiming. If on the other hand the order is limited to such stores/stalls as may enure them then the order is contingent upon a prior determination of what stores/stalls out of the whole lot that the Respondents may be entitled to. In either case, head or tail, the order made by the trial court, exceeds the scope of the claim of the 1st set of Respondents and this must not stand.

Lastly, on the conduct of the parties in the case. Indolence of the 1st set of Respondents was never in question in view of the foregoing. But for the appellants by comparison, the trial court found as a fact and held that the appellants are not guilty of any reprehensible conduct, at page 98 lines 15- 18, thus:

“Equally, on the other hand, the Defendants cannot be said to have any reprehensible character because the plaintiffs did not aver so in his submission.”

The grant or refusal of interlocutory injunction will take into consideration the conduct of the parties. A reprehensible conduct of an applicant may deny him of the grant of interlocutory injunction. See UBN LTD V. TROPICAL FOODS LTD (1992) 3 NWLR (Pt.228); ODUNTAN V. GEN. OIL LTD (supra) and EZEBILO V. CHINWUBA (supra).

In view of the foregoing reasons the first issue raised for the determination of this appeal is resolved in favour of the Appellants.

I will now consider the second issue whether the trial court was right to have extended time for the plaintiffs to file their statement of claim without any application for same and in all circumstances of this case.

The order which the court made reads thus:

“But I also make the following further orders which I deem fit in the circumstances:

(1) That Plaintiffs/Applicants must file their statement of claim in this suit and serve same on the Defendants on or before the 21st of March, 2002.

(2) That this substantive suit when filed will be given accelerated hearing.”

The Appellants have contended that there was no application for extension of time for the plaintiffs to file their statement of claim and the extension of time is not granted as a matter of course. The Respondents on the other hand, have submitted that the court was right in granting extension of time. Reliance was placed on order 47 Rule 1 of the High court (civil Procedure) Rules 1988 of Imo state. It is argued that the Appellants have not shown how their grant of the extension has prejudiced them.

Generally, the application for extension of time to regularize a position must show sufficient excuse for the delay unless compelling serious issues of law are involved. Extension of time is not granted as a matter of course. See UKWU V. BUNGE (1997) 8 NWLR (Pt.518) 527 at 539. The delay in bringing the application must be supported by compelling reasons before the application can be granted.However, order 47 Rule 1 of the Imo State High court (civil procedure) Rules, 1988 which the Respondents are relying on provides:

“Subject to particular rule, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

It would appear to me that this provision has given the trial court a very wide discretion to make any order which it considers necessary for doing justice, notwithstanding the delay in bringing the application by the plaintiffs was inordinate. The court would take a lenient view of the delay in bringing an application to regularize any cause or matter under this Rule. If it considers that the justice of the case would necessitate the making an order it would do so with or without formal application by the person entitled to the benefit of the order or not. Having regard to the circumstances of the case, it is my view that the trial court was right in extending the time within which the plaintiffs/Respondents may file their statement of claim. The Appellants have not shown that they were prejudiced by the order made. In one breath the Appellants complain about indolence and delay of the Respondents, and in another breath they complain about the order made by the trial court for accelerated hearing of the case. Appellants have displayed some anxiety for the determination of the case. This is also shown when they undertook to compile the bundle of papers as record for this appeal. Since the 1st set of Respondents’ statement of claim have been filed by the order of the trial court and accelerated hearing ordered, the Appellants should have allowed the matter be heard expeditiously.

In the end result, the appeal partly succeeds and is allowed. The order of interlocutory injunction made by the trial court cannot be sustained. It is set aside. Issues having been joined the substantive suit is remitted to the Imo state chief Judge for assignment before another judge for expedition hearing and determination. I make no order as to costs, in the circumstance of this case.

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Other Citations: (2009)LCN/3183(CA)