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In The Supreme Court of
On Friday, the 8th day of June
2007
Before Their Lordships
SC. 80/2002
Between
And
Judgement of the Court
Delivered by
Walter Samuel
Nkanu Onnoghen.
J.S.C
This is an appeal against the
judgment of the Court of Appeal Holden at
It is not disputed that the
respondent is a customer of the 1st appellant by virtue of whom
it was granted various credit facilities by the 1st appellant on
request. As security for the various facilities, the respondent executed a
deed of legal mortgage; exhibit D2, over its estate at 'Nkpo
-
When the respondent failed to
liquidate the indebtedness, the 1st appellant, in exercise of the
powers conferred on it by clause 5 of Exhibit D11, appointed the 2nd
and 3rd appellants as receivers/managers over all the assets and
management of the respondent's business, vide exhibit D19 which appointment
was duly registered with the Corporate Affairs Commission, vide exhibit 20.
The 2nd and 3rd appellants took over the management of
the assets and business of the respondent, according to the appellants, on
the 20th day of February, 1997.
On the 26th day of
February, 1997, the respondent instituted an action at the Federal High
Court Holden at
"(1) A
Declaration that the Deed of Debenture dated the 11th of December
1995 is invalid, null and void and that the consequent appointment of the 2nd
and 3rd defendants as Receiver/Manager of the plaintiff company
is invalid, null and void and of no effect whatsoever.
(2)
A Declaration that the said Deed of Debenture, even if valid, does
not incorporate a legal mortgage over plaintiff's landed properties, if any.
(3)
A Declaration that the said Deed of Debenture, even if valid, does
not cover the landed properties situate at Agulu
in Angocha Local Government Area and No.
5 Udodi Crescent Omoba
Phase II, Onitsha both in Anambra State, in that
neither is the property of the plaintiff company.
(4)
Damages against the Defendants jointly and severally.
(5)
An Order of perpetual-injunction restraining the Defendants, their
officers, servants, agents/privies or any of them or otherwise howsoever
from interfering or inter-meddling with and/or disrupting howsoever the
management by the plaintiff company of its affairs."
Along with the writ of summons
the respondent filed a motion ex
parte praying the court for,
inter alia, the following orders:-
"1.
An Order of interim injunction restraining, the Defendants, their
agents and/or privies jointly and severally from further trespassing and/or
interfering with assets, business and operations of the plaintiff/applicant
pending the determination of the Motion on Notice filed in the suit.
2.
An Order of interim
injunction restraining the Respondents, their agents/privies jointly and
severally from further trespassing on the premises at
Agulu in Aniocha Local Government Area
and No. 5 Udodi Crescent,
Omoba, Phase II, Onitsha, both in
Anambra State, which properties do not belong to
the Plaintiff/Applicant, and in any case are not covered by the Deed of
Debenture on the strength of which the Defendants/Respondent purported to
have acted pending the determination of the Motion of Notice filed therein.
3.
An Order of interim injunction restraining the
Defendants/Respondents, their agents and/or privies jointly and severally
howsoever from continuing to threaten the operations of the plaintiff's
business and assets pending the determination of the motion on Notice."
The
ex parte motion was supported by
an affidavit of 32 paragraphs and many exhibits. The trial court, after due
consideration, granted the orders on 27/2/97.
On the 20th day of
March, 1997, the appellants, as defendants, filed a motion on Notice before
the trial court for the following orders:
"1.
An order extending the time within which the
Defendants/Applicants may apply for a discharge of the order of interim
injunction granted by this Honourable Court on 29 (sic) February, 1997 in
favour of the Plaintiff/Respondent.
2.
An order discharging the order of interim order granted on the 27th
February, 1997 by the Honourable Court.”
The grounds on which the
application to discharge the order is based are stated to be:
"(a) The
plaintiff suppressed material facts in obtaining the order.
(b)
There is no matter of urgency for which the order
was
obtained:
(c)
The plaintiff did not give undertaking as to damages.
(d)
The order was obtained mala fide."
The application was supported
by a 50 paragraphed affidavit. In a considered ruling delivered by the trial
court on the 27th day of January 1998, the court refused the
application by dismissing same, thereby giving rise to the appeal to the
Court of Appeal Holden at the Supreme Court.
In the appellants' brief of
argument filed on 22/4/02 and adopted in argument of the appeal by learned
Counsel for the appellants Mogbeyi
Sagay, Esq, the
following issues have been identified for determination:-
"1.
Whether on the available facts the Court of Appeal was right in
dismissing the Appellants' Appeal therefore refusing to discharge the order
of interim injunction granted ex parte against the Appellants.
2.
Whether it was proper for the Court of Appeal to affirm the decision
of the Learned Trial Judge exercising his discretion in favour of not
discharging the order of interim injunction granted ex parte against
the Appellants."
On the other hand, learned
Senior Leading Counsel for the respondent, Prof. B.O.
Nwabueze SAN, has, in the respondent's brief of
argument filed on 19/11/02, identified the following four issues for
determination:
"(A) Whether
the execution of the legal Mortgage over the Plaintiff/Respondent's land in
Nkpor/Obisi Road,
the execution of the Deed of Debenture over the Plaintiff's/Respondent's
business and assets at No 5 Udodi
Crescent, Onitsha and the appointment of the 2nd and 3rd
appellant's as Receivers/Managers under the said Deed of
Debenture deprived the plaintiff/respondent of all
"recognizable legal right"
in the property business and assets aforementioned, and consequently of
locus standi to institute the present suit.
(B)
Whether there was real urgency to justify the ex parte interim
injunction granted to the plaintiff/respondent by the trial court and that
court's refusal of
the appellants' application for the discharge of the ex parte interim
injunction as well as the affirmation by the Court of Appeal of the trial
Court's Ruling on the application.
(C)
Whether the appellants' invasion of the plaintiff/respondent's
business premises with 30 armed men on 20/2/97 and their continued
interferences with the said premises, business and assets after a suit of an
injunction was fried on 26/2/97 and an interim restraining order was
made on 27/2/97, even assuming the order to have been wrongly made, do not
disentitle the appellants to pray the court for a discharge of the order.
(D)
Whether the appeal is not fatally flawed by manifold inaccuracies and
confusion in ideas in the appellants' brief as well as by its unintelligible
and unseeing language."
Learned Senior Counsel for the
respondent then called on the court to discountenance arguments of learned
Counsel for the
Appellants on, what counsel referred to as
non-issues because -
"(i)
there was no averment in support of them in the appellants' affidavit
(which was the only evidence produced by them in support of their
application for the discharge of the interim injunctive order) and
(ii)
the questions were not raised by the appellants nor canvassed by the
parties during the hearing of the application for the discharge of ,the
order, and were not considered in the trial Court's Ruling."
Learned Counsel then
identified the alleged non - issues to be the following:-
"(E)
Whether the acts restrained by the
ex
parte
interim injunction had been completed or not completed at the time the
restraining order was granted;
(F)
Whether there had been suppression or nondisclosure of certain facts
mentioned in the appellants' Brief of Argument filed in the Supreme Court."
It should be noted, as a
preliminary matter, that learned Counsel for the appellants has submitted in
the Reply brief filed on 12/12/06 that respondent's issues (a), (c) and (d)
are incompetent as they do not arise from the decision of the Court of
Appeal and that the respondent cannot raise them without the leave of court;
that a ground of appeal or a point of law not raised in the court below may,
with the leave of the appeal court, be raised for the first time on appeal,
where: -
(a)
the new ground involves a substantial point of law and it is plain
that no further evidence is needed for a decision on it, relying on
Sheneka
vs Smith (1964) 1 All
NLR 168;
(b)
a point of law not taken in the court .below, but raised for the
first time in appellate court can be entertained by the appellate court if
it is satisfied that the evidence upon which it is required to decide the
point is on record and that such evidence on record is sufficient to sustain
the new point, and that the respondent-could not have called evidence in
rebuttal;
(c)
where the new point goes to the existence of the suit, and,
(d)
the appellant is also required to change his argument if the evidence
of the new point is on record; relying on
Jadesinmi
vs Okotie - Ebon,
(1996) 2 NWLR (pt. 429) 128 at 144.
However, turning to the issues
as formulated by learned Counsel for the respondent, I wish to mention the
fact that the respondent has not cross appealed in this matter. Yet while
the appellant submitted two issues for determination, the respondent
submitted four issues. It is settled law that issues for determination in an
appeal must be distilled from the grounds of appeal filed in the appeal
which grounds of appeal must be complaints against the
ratio decidendi
in the case. In other words, issues for determination in an appeal are not
formulated from the evidence before the lower court and/or the applicable
law thereto where there is or are no grounds of appeal attacking such
evidence, findings or errors in law. In the instant case, I have gone
through the grounds of appeal as filed in this matter and I agree with the
submission of learned Counsel for the appellants that respondent's issues
(a), (c) and (d) do not arise for determination having regard to the grounds
of appeal vis-a-vis
the decision of the Court of Appeal and are consequently discountenanced and
it does not matter whether learned Counsel for the appellants argued them in
his brief of argument. It must be remembered always that the grounds on
which learned Counsel urged the trial court to discharge the
ex parte interim order of
injunction are as earlier reproduced in the judgment and that it was on the
basis of those grounds and the facts in support thereof that the trial judge
exercised his discretion not to discharge the order the appeal to the Court
of Appeal is based on the refusal of the trial court to discharge the order
having regards to the facts in support and applicable law thereto. No party
is allowed to change his case per court. It is also settled law that where
fresh point(s) of law or issue(s) is/are to be argued for the first time on
appeal, the leave of either the lower court or the appellate court is
required without which the issue(s) or point(s) of law would be incompetent
particularly where the issue(s)/or points) of law does not affect the
jurisdiction of the lower court to entertain and determine the matter before
it, as in the instant, case.
In this judgment, I will limit
myself to the two main issues as formulated by learned Counsel for the
appellants and any such subsidiary issue(s) as may arise having regards to
the grounds of appeal. I need to comment on the fact that this is really a
simple matter which had been blown out of proportion by both counsel who
have filed copious briefs on multiple issues and/or subsidiary issues on the
simple question as to whether or not the trial court exercised its
discretion judiciously and judicially when it refused to discharge the
ex parte order of interim
injunction which was the main issue before the Court of Appeal, and whether
the Court of Appeal was right in affirming the decision of the trial court
refusing to discharge the said ex
parte order of interim injunction which should be the primary issue for
determination by this Court. When one bears the above observations in mind,
it becomes very clear that appellants' two issues are really not two but one
issue which is also in line with what I had earlier stated as expected of'
in appeal of this nature.
However, in arguing issue No.
1, learned Counsel for the appellants submitted that it is settled law that
injunction is granted to protect existing legal rights or recognizable right
of a person from unlawful invasion by another and that where there is no
such right, the order ought not to be granted, for which counsel cited and
relied on the case of
Akibu
vs Oduntan (1991) 2
NWLR (pt. 171) 1 at 3; that the Court of
Appeal ought to have discharged the interim order as there was no
recognizable right of the respondent to be protected at the time of making
the order on 27/2/97 relying on
Akapo
vs Hakeem - Habeeb
(1992) 6 NWLR (pt. 247) 266- 289;
Ojukwu
vs Governor of Lagos State (1986) 3
NWLR (pt 26) 39; Obeya
Memorial Hospital vs A-G of the Federation
(1987) 3 NWLR (pt. 60) 325; that the absence
of any legal right in the respondent worthy of any protection is the result
of the appointment of the 2nd and 3rd appellants as
Receivers/Managers of the respondent thereby vesting the legal rights of the
respondent in the properties in the 2nd and
3fd appellants leaving the respondent with no
locus standi
to institute the action; that the respondent did not establish, by affidavit
evidence the urgency needed for a grant of an
ex parte order of injunction;
that injunction is not a remedy for any act that has been completed, relying
on Ajewole
vs Adetimo (1996) 2
NWLR (pt. 431} 391 at 400 - 401 and urged
the court to resolve the issue in favour of the appellants.
It has to be pointed out once
more that the grounds upon which learned Counsel for the appellants called
upon the trial court to discharge its
ex- parte order of interim injunction are four; namely,
(a)
that the plaintiff/respondent suppressed material facts in obtaining
the order;
(b)
there is no matter of urgency for which the order was obtained,
(c)
the plaintiff/respondent did not give undertaking as to damages, and
(d)
the order was obtained mala
fide.
Upon the trial court's refusal
to disengage the ex parte order
and the consequent appeal to the Court of Appeal, the issues for
determination before the Court of Appeal, as can be seen in the appellants'
brief filed in that court at page 222 of the record are as follows:-
“(i)
Whether the learned trial
judge was right in refusing to discharge the interim order of injunction
dated 27/2/979?
(ii)
Whether the court (sic) discretion to discharge the order was
judiciously and judicially exercised?"
I have gone through the
arguments of learned Counsel for the appellants in that brief of argument on
the two issues, which were argued together, and it is very clear that the
issues as to whether the ex parte
order of injunction was granted after a completed act or to restrain a
completed act, or lack of legal right in the respondent to be protected by
the said ex parte order or
locus standi
of the respondent to apply for the said
ex parte order or file the suit
in the first instant were never raised and argued before the lower court
neither did that court decide the said issues. The issues are therefore
fresh issues or points of law being raised for the first time by the
appellants before this Court. It is settled law that fresh points of law or
issues cannot be raised for-the first time on appeal without the leave of
either the lower court or the appellate court. In the instant case, there is
no evidence on record that the appellants obtained the leave of either the
Court of Appeal or of this court before raising the issues in question
thereby rendering the said issues or points of law incompetent and liable to
be struck out. The issues are therefore discountenanced by me.
On the issue of lack of
urgency for the ex parte order
learned Counsel for the respondent submitted that there was real urgency and
that the reasons given by the Court of Appeal for its decision on the issue
cannot be faulted particularly as the take over of the respondent's premises
was anything, but peaceful; that the assets of the respondent were being,
sold or carted away by the 2nd and 3rd appellants;
that the question as to whether there was sufficient time for an applicant
to have put the respondent on notice has to be judged in relation to the
facts of each case and that the facts and circumstances of this case
justified the grant of the order.
It is now settled law that the
time relevant in determining urgency justifying the grant of
ex parte interim order of
injunction is the time between the happening of the event which is sought to
be restrained and the date the application for an injunction could be heard
if taken after due notice to the other side see
Kotoye
vs CBN (1989) 1
NWLR (pt. 98) 419 per
Nnaemeka Agu, JSC.
From the facts relevant to the issue as contained in the affidavits which
were accepted by the lower courts, it is clear that the take over of the
respondents business premises was on 20/2/97 and it was the event whose
continuance the respondent sought to restrain by the
ex parte order by an application
filed on 26/2/97; there was a weekend between 20/2/97 and 26/2/97. From the
record the action was filed in
On issue 2, learned Counsel
for the appellants submitted that the Court of Appeal was wrong to have
affirmed the decision of the trial court refusing to discharge the order of
injunction when it was overwhelmingly posited that the respondent massively
suppressed material facts and indeed misdirected the mind of the court into
granting the ex parte injunction;
that the respondent suppressed the fact that the Deed of Debenture was
signed by the Chief Executive of the respondent; that the Deed of Debenture
is very material to the case of the respondent; that though the respondent
acknowledged the appointment of the 2nd & 3rd
appellants as receivers/managers but suppressed the fact of what date the
appointment took effect and when it became aware of such appointment when,
it exhibited the copy of the Deed of Appointment; that where an
ex parte order of injunction is
based on an important misstatement , the court should not hesitate to
discharge the order at once, relying on
Okechukwu
vs Okechukwu (1989)
3 NWLR (pt. 108) 234 at 246, and urged the
court to resolve the issue in favour of the appellants.
On his part, learned Senior
Counsel for the respondent submitted that the facts relied upon by counsel
for the appellants in making the submission of suppression of facts are
contrary to the facts deposed to in paragraphs 7, 9, 10, 11, 12 and 15 at
pages 84, 85 and 86 of the record, of their affidavit that the said
depositions relate to the amount which the appellants claimed the respondent
was indebted to it, the nature of the facility from which the debt arose
(whether loan, overdraft, letter of credit, etc), the security for the
facility, how or by whom the facility was granted; that the trial court was
right in holding that the alleged suppressed facts were irrelevant to the
application; that there was no evidence to the fact that the respondent did
not disclose the existence of a Deed of Debenture neither was the issue
raised before the trial court which therefore had
no opportunity of deciding it; that the issue cannot now he raised before
the Supreme Court.
In any event learned counsel submitted that a party cannot be said to have
suppressed a fact of the existence of a document which he has exhibited
before the court (exhibit BON 8); that the pleas of
non est
factum raised in paragraph 19 of the respondent's affidavit is a well
known defense at common law, which allows a person to say that ,a deed
bearing his signature is not, in fact, executed by him because his signature
on it was obtained by duress, undue influence, intimidation, etc; that all
the instances listed as. constituting suppression of material facts were not
covered by the affidavit evidence before the court neither were they raised
before the trial court which consequently never preferred any opinion
thereon and that this Court should discountenance them; that the
determination of what facts are material in an application for an interim
injunction must have regard to the claims in the substantive suit and urged
the court to resolve the issue against the appellants.
It is settled law that the court that makes an
ex parte order of interim
injunction has the inherent power or jurisdiction in an
appropriate case to vary, or
discharge same. The grounds on which the court will set aside, vary or
discharge an order of interim injunction made
ex parte include the following:-
(i)
if the plaintiff has not used his administrative powers that might
have resolved the difficulty;
(ii)
if default has been made in giving security for costs;
(iii)
if the affidavit has not been filed when the injunction was moved
for;
(iv)
if it was granted on a suppression or misrepresentation of material
facts;
(v)
if it was irregularly granted;
(vi)
if the plaintiff failed to attend to be
cross examined;
(vii)
if there had been delay in complying with an undertaking to amend the
writ by adding a party as plaintiff;
(viii)
if there is non-disclosure of material facts.
It is no excuse for the
plaintiff or a party to say that he was not aware of the importance of the
facts which have been suppressed or not brought to the attention of the
court. The law is that the court will deal strictly with a party applying
ex parte and who had
misrepresented or suppressed material facts.
Applying the above principles
to the facts of the case, the learned trial judge at pages 203 to 204 held
thus:-
"In as much as the plaintiff's claim is as regards the validity of the said
Deed of Debenture dated 11-12-95, the plaintiff must confine itself to that
claim and no more. The defendants and the court cannot go beyond the
plaintiff's claim. The plaintiff does not have to plead or exhibit all the
documents required to prove his case, it is sufficient if he exhibits the
main document on which his claim revolves, at this interlocutory stage.
Therefore, all the documents which the plaintiff was alleged to have
suppressed from the court, are not relevant or material to the claim of the
plaintiff, hence no case of suppression of material facts, has been
established........"
On its part the Court of
Appeal, in its judgment at pages 280 to 281 of the record, held as follows;
with regards to the issue of suppression of material facts:-
"The question of whether the respondent suppressed or misrepresented
material facts that, influenced the granting to it of the injunctive orders
treads on the borderline of the substantive and interlocutory stage of the
action. To which side of the divide the question swings will depend on the
nature of the facts suppressed or misrepresented and the materiality of the
fads in the sequence of occurrence that triggered off the supplication. What
is advanced by the appellants as suppression or misrepresentation of facts
is the validity of the Debenture Deed which is a springboard for the take
over of the respondent's business. That is a question that must be settled
at the trial of the substantive action. The fall out of the take over is
what led to the temporary relief of an
interim injunction to contain injury or damage that was engendered by the
take over. Therefore whether the respondent suppressed or misrepresented
facts about the validity of the Debenture Deed belongs, to the sphere of the
substantive action. It is not necessary to consider it in examining the
merit of the interlocutory relief. What fell to be considered, in the
respondent's application was whether there had been established an injury of
the magnitude justifying the relief sought and how to contain the damage or
injury done to respondent's business as a result of the take over.
The validity of the Debenture Deed would decide the key issue of whether the
take over of the respondent's assets and management of its business is
justified and the forum for that deliberation is the trial of the
substantive action. That being the case to consider at the stage of an
interlocutory application in the proceedings any question about the validity
of the Debenture Deed is to anticipate the very issue that is the core of
the dispute in the action. What called for consideration in the
interlocutory application before the trial court was how best to salvage the
respondent's business which from the evidence believed by the court had gone
into a sudden nose dive leaving the more fundamental question of whether the
take over was justified which is bound up with the validity of the Debenture
Deed to be determined in the substantive action."
I had earlier in this judgment reproduced the reliefs claimed in the-writ of
summons which clearly vindicates the views held by the lower courts as to
the substantive claim before the court and the materiality of the alleged
suppressed or misrepresented facts to the said claim rather than to the
grant of the ex parte application
for an order of interim
injunction. I have no hesitation whatsoever in coming to the conclusion that
the Court of Appeal was right in holding as it did. I therefore have no
reason to disturb that holding which in effect affirmed the finding of the
trial court on the matter.
Once again we are faced with a
very unfortunate situation in which an action commenced in February 1997 is
yet to go beyond the stage of pleadings ten years after, due to
interlocutory appeals on interim order of injunction. In the instant case,
appellant kept on changing his case as to why the ex parte order of
injunction ought to be discharged from one court to the other. Meanwhile the
substantive action still pends at the Federal
High Court,
In conclusion, I find no merit
whatsoever in this appeal which is accordingly dismissed with
Appeal dismissed.
Judgment
delivered by
Niki
Tobi,
J.S.C.
This appeal arises because of
the refusal of the two lower courts to discharge an order of interim
injunction made or granted ex parte by the High Court. The respondent
was indebted to the 1st appellant. The respondent was unable to
liquidate its indebtedness. This resulted in the 1st appellant
appointing the 2nd and 3rd appellants as
Receivers/Managers over at the assets and management of the respondent's
business. The respondent filed an action at the Federal High Court Enugu
against the appellants. The action was accompanied by a motion ex parte
for interim injunction. The learned trial Judge granted the order of
interim injunction. That was on 27th February, 1997. Appellants
filed a motion for the discharge of the order of interim injunction, the
learned trial Judge refused to do so. An appeal to the Court of Appeal was
dismissed. This is a further appeal to this court.
Learned counsel for the
appellants submitted that the order of interim injunction ought to have been
discharged because there was no cognizable legal right of the respondent at
the time the injunction was issued on 27th February, 1997. He
argued that the respondent had no locus standi
to seek an injunctive redress. Counsel submitted that in the
circumstances of the case, the Court of Appeal was wrong in affirming the
decision of the High Court. On the contrary, learned counsel for the
respondent submitted that the High Court was right in refusing the
application to discharge its interim order and that the Court of Appeal
rightly dismissed the appeal.
The purpose or object of
granting an order of interim injunction is to make sure that the subject
matter of the litigation is kept in status quo pending or until the
litigation. It is to maintain the status quo between the parties.
Accordingly, the order must be restricted or limited to the preservation of
the res pending the determination of the motion on notice. It is to protect
the existing legal right of the applicant from being destroyed or
annihilated. It is aimed at meeting a situation of real urgency or emergency
before the respondent can be put on notice.
In an application for granting
an order of interim injunction, the court must take into consideration the
following;
(1)
An applicant for interim injunction must have a legal right in the
subject matter, which he seeks to prevent by the conduct of the defendant to
violate.
(2)
There must exist a serious question or substantial issue or case to
be tried. The courts should note that in the determination of the strength
of the applicant's case, the case law has moved from the earlier position
that the plaintiff must show a strong
prima facie case or a case of probability of success (see
Harman Pictures
N.V. v. Osborne (1967) 1 WLR 723; Nigeria Civil Service Union v.
Essien (1985) 3 NWLR
(Pt, 12) 306) to whether there is a serious question or substantial issue or
case to be tried: See Cynamid v.
Ethican Ltd. (1975) AC 396;
Obeya Memorial Specialist Hospital Ayi-Onyama
Family Limited v. Attorney-General of the Federation (1987) 3
NWLR (Pt. 60} 325.
(3)
One of the most important principles is the preservation of the res
which is the subject matter of the suit.
(4)
In the application, the court must consider the balance of
convenience, the opposite of the balance of inconvenience.
(5)
For an interim injunction to be granted, the applicant must show the
.existence of a real urgency and not a caricature of it.
(6)
Interim injunction can only be granted in cases of emergency. It
should be noted that the word "emergency" is not synonymous with "urgency".
While emergency means an unforeseen event or condition requiring a prompt
action, urgency, in its adjectival variant, means calling for immediate
attention.
(7)
The applicant must not delay in bringing the application. It is a
loud doctrine of equity that delays defeats equity. Since interim injunction
is by and large an equitable remedy or relief, delay in making the
application will certainly defeat it, because the element of urgency, the
very essence and basis of the application, is gone.
(8)
There must be a subsisting
action and relief to found an application for
interim injunction. Evidently, an application for interim injunction
postulates that the applicant^ has a right the violation of which he seeks
to prevent and in order to do so effectively, to ensure at that stage of the
proceedings that the subject matter of the right be maintained in status
quo.
(9)
The court must consider the gravity of injury and the fact that the
loss is irreparable.
(10)
The applicant must establish or show that it is virtually or
practically impossible to bring a motion on notice, considering the
compelling sudden events.
(11)
The applicant must show that the award of damages will not be
adequate or enough to compensate him.
(12)
A mere allegation of threat to peace is not enough to grant an
application for interim injunction. An applicant should go beyond mere
allegation of threat to peace to substantial overt acts of such threat.
(13)
The omnibus principle is the existence of special circumstances. This
includes quite a number of the principles examined above, and more
particularly, those mentioned in
Kotoye
v. CBN (1989) 1 NWLR
(Pt. 98) 419.
(14)
The granting of an interim injunction is not a matter of course or
routine, slavishly following an application. The court must take into
consideration the above principles in their relevance to the facts of the
case.
I should now apply the above
in their relevance to the facts of this case. I should say right away that
the relevant principles are those of urgency, delay and why the appellant
was not put on notice. I will take them seriatim. On the principle of
urgency, the Court of Appeal said at pages 276 and 277 of the Record:
"Paragraphs 3b, 3c, 3d, 4 and
5 of Affidavit of Urgency are an abridgment of paragraphs 17-18 and 21-27 of
the affidavit supporting the ex parte motion for injunction at pages 7-8 of
the record of this appeal. They give a description of some bizarre
happenings on the respondent’s premises at
On the principle of delay, the Court gave credence to the following
submission by the Senior Advocate for the respondent:
"The intervals between the take over on 20/2/97 and 26/2/97 when the
respondent took out the writ are inconsequential to amount to a delay
considering the fact that the take over took place on Thursday with an
intervening weekend leaving only 2 days of ensuing week for the respondent
to contemplate the recourse that would be efficacious and effectuate it."
Drawing from the above, the Court of Appeal concluded at page 278;
"To my judgment, the excuse is tenable and I do not find the time lag of 6
days punctuated by a week-end to be an inexcusable delay even where it is
considered to be a delay by aggregating the number of days."
On why a motion on notice was not served on the respondent, the Court of
Appeal said at page 278 of the Record and I will quote the Court in
extenso:
"With regard to the third question, the contention of learned counsel for
the applicants that failure of the respondent to put the appellants on
notice of its motion is
inexcusable because there was enough time for the respondent to do so was
met by the
respondent's rejoinder that as the appellants were shown to be living on
various,, addresses., and at different locations in Lagos outside
Anambra State it was not practicable to put them
on notice within the time required to ward off, the threat faced by the
respondent.
The appellants did not rebut the respondent's claim on page 9 of the
Respondent's Brief of Argument that the appellants lived, in
I think the Court of Appeal
did a good job-in this case. The arrest, seizure of the property and the
presence of armed policemen and soldiers in the premises executing the
arrest and seizure were signs, not only of breakdown of law and order, but
.also of instability and chaos. The social equilibrium was in disarray and
ominous "war bells" were figuratively ringing in the air. There could not
have been a better situation of urgency to invite and receive an order of
interim injunction. The learned trial judge, Kasim,
J. was therefore right in clamping the order on the appellant. From the
state of things, every passing minute was important and urgent.
Dealing with delay in
Kotoye
v. Central Bank of Nigeria, supra, the Supreme Court said at page 440:
"So, if an incident which
forms the basis of an application occurred long enough for the application
to have given due notice of the application to the other side if he had
acted promptly but he delays so much in bringing the application until there
is not enough time to put the other side on notice, then there is a case of
self-induced urgency, and not one of real urgency within the meaning of the
law. This self-induced urgency will not warrant the granting of the
application ex parte."
The operative expressions in
Kotoye
are "long enough" and "delays so much". These expressions can only be given
their proper meaning in the context of the facts of the case and not in
vacuo. The length or period of delay can
only be donated by the facts of the case. On the face value of the grammar
or syntax of the two expressions, they may connote a longish period in the
context of quite long, or lasting more than usual
or more than is wished. The expressions must be given their relevant meaning
in the law of interim injunction granted in an ex parte motion,
vis-a-vis
motion on notice. In that context, the expressions in
Kotoye should not take or
cover a longish period with the urgency characteristic of
ex
parte motion of interim
injunction.
The quarrel in this appeal is
the period of six days. The appellants say that was too long a period. The
respondent says that was not too long a period, considering the
circumstances of the case, particularly the intervening weekend. I think I
am with the respondent. There is an adequate explanation of the period of
six days. I therefore agree with the Court of Appeal that there was no delay
in bringing the application.
And that takes me to the last
one. An application ex parte for
an interim injunction can only be brought in cases of extreme urgency where
it is not possible in reality to bring an application on notice. I think the
respondent's explanation that the appellant lived in various addresses and
at different locations in
In sum, this appeal fails. I
entirely agree with my learned brother, Onnoghen,
JSC, that the appeal should be dismissed. I
abide by the orders as to costs made by my learned brother.
Judgment
delivered by
George
Adesola Oguntade,
J.S.C.
I have had the advantage of
reading in draft a copy, of the lead judgment by my
Learned brother Onnoghen
JSC. He has exhaustively dealt with the issues
in this appeal and I entirely agree with him. I adopt his reasoning and
conclusion as mine. I would also dismiss this appeal as unmeritorious. I
subscribe to the order on costs.
Judgment
delivered by
Aloma
Mariam Mukhtar,
J.S.C.
After filing its writ of
summons, the plaintiff, who is the respondent in this appeal, filed and
moved a motion ex parte for:-
"1.
An Order of interim injunction restraining the Defendants, their
agents and/or privies jointly and severally from further trespassing on or
interfering with the assets, business and operations of the
Plaintiff/Applicant pending the determination of the motion on Notice filed
in this suit.
2.
An Order of interim injunction restraining the Respondents, their
agents/privies jointly and severally from
further
trespassing on the premises at Agulu in
Aniocha Local Government Area and No 5
Udoji Crescent, Omeba,
Onitsha, both in Anambra State, which properties
do not belong to the Plaintiff/Applicant , and in any case are not covered
by the Deed of Debenture on the strength of which the Defendants/Respondents
purported to have acted pending the determination of the Motion on Notice
filed therein.
3.
An Order of interim, injunction restraining the
Defendants/Respondents, their agents and/or privies jointly and severally
however from continuing to threaten the operations of the plaintiff‘s
business and assets pending the determination of the Motion on Notice."
The Chairman/Chief Executive of the plaintiff applicant company, Chief
Oliver Afamefuna swore to an affidavit in
support of the motion. The interim order of injunction was granted. A few
days after the defendants filed an application to discharge the interim
orders, supported by an affidavit. The application was refused, and the
defendant appealed to the Court of Appeal,
It has been argued in the appellants' brief of argument that the
plaintiff/respondent did not show or disclose urgency, in the matter to
warrant or justify the granting of an interim injunction. I disagree. If one
looks carefully at the supporting affidavit to the application for
interim-injunction, it will be discovered that some depositions have
established that some element of urgency did exist. The salient depositions
are:
"13. That in
spite of the above-mentioned mortgage executed in favor of the 1st
Defendant/Respondent, the 1st
Defendant/Respondent sometime
in March 1996 seized and took possession of the drugs belonging to the
Plaintiff/Applicant Company valued at
23.
That these drugs are still left unattended and will result in (sic)
the enormous losses if not attended to as soon as possible.
25.
That several properties and assets found in the premises were carted
away by the 2nd and 3rd Defendants who have since
engaged in the sale and disposal of the said properties and the premises
sealed by the Defendants.
26.
That the 2nd and 3rd Defendants/Respondent
thereafter proceeded to Agulu factory located at
Aniocha Local Government Area, of
Anambra State and removed all machineries found
in the factory to an unknown destination for sale and disposal of same.
28.
That it is the fear of the plaintiff/applicant that if this order is
not granted that the properties carted away by the Defendants would all be
sold without any possibilities of getting them back."
The above facts clearly set
out the position of the defendants/appellants' properties in the possession
of the respondent, their fate and the fear of the plaintiffs on the ultimate
fate of the properties and the irreparable loss he is likely to suffer.
Interim or ex parte injunction
will usually be granted where delay caused by proceeding might involve
irreparable loss and where such situation exists the court might exercise
its discretion in favour of the plaintiff. In the case of
Magdalen
College Oxford v Ward 1839.47 E.R. 849, Lord
Langdale M.R. in
granting an injunction ex parte
made the following observation:-
"When application is made to
me for such an injunction I am always disposed to accede to the application
where little mischief can arise by the granting of the injunction ex
parte and on the other hand irreparable injury may ensure were the
injunction is refused."
In the instant case if the
learned trial judge had not granted the interim injunction the machines etc
of the plaintiff/respondent would have been sold and the status quo would
not have been preserved. The result would have been that the respondent
would have suffered serious injury.
The learned judge of the
Federal High Court could not have been faulted for granting the interim
injunction and for refusing to grant the application to discharge the said
injunction. Consequently, the
"(1)
If the plaintiffs have not used their administrative powers that
might have resolved the difficulty.
(2)
If default has been made in giving security for costs.
(3)
If the affidavit had not been filed and an office copy obtained when
the injunction was moved for;
(4)
If it was granted on a suppression or misrepresentation of material
facts, even if the injunction is about to expire. Failure to attend to be
cross-examined, and delay in complying with an undertaking to amend the writ
by adding a party as plaintiff, is also grounds for dissolution."
These grounds have not been
shown by the appellant.
On a whole, the Court of
Appeal was not wrong for dismissing the appeal before it.
The court affirmed the ruling of the Federal High Court and correctly
found as follows:-
"Although not distinctly
articulated in the Appellants' Brief of Argument yet as an impact and factor
to be considered in an application for an interim injunction I am satisfied
that the convenience for granting the application weighed heavily in favour
of the respondent as one that would suffer more hardship if the interim
injunction was refused. That is because on the facts examined under question
one of issue one the state of the respondent's business that was shown to
have gone into a sudden nosedive between 20/2/96 and 26/2/96 at the onset of
its being taken over by the appellants is a clear indication of the swing of
the pendulum of convenience in favour of the respondent.
See African Continental Bank Ltd. v
Awogboro, (1991) 2 NWLR
(part 176) 711,719-720."
In the light of the above and
the fuller reasoning in the lead judgment of my learned brother
Onnoghen JSC, I also
dismiss the appeal.
It is unmeritorious and it
lacks substance. I abide by the consequential orders made in the lead
judgment.
Judgment
delivered by
Christopher Mitchell
Chukwuma-Eneh, JSC
I have read in advance the
judgment prepared by my learned brother Onnoghen
JSC in this matter and I agree with him that the
ex parte interim order
granted in this matter by the Federal High Court Enugu and as affirmed by
the Court below should not for good reasons be discharged. I
therefore dismiss the appeal, and abide by the
orders made in the lead judgment.
Counsel
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