CORAM
PARTIES
CHIEF OYIBO AGBOMAGBO & ANOR APPELLANTS
CHIEF OLOKU OKPOGO & ORS RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
In 1984, the Plaintiffs (now Appellant) instituted an action against 5 original Defendants claiming declaratory and injunctive reliefs seeking to restrain the Defendants/Respondents from installing any person as the Odion-Ologbo of Ofagbe. Soon after, the Appellant obtained an interim order of injunction against the Defendants restraining them from installing any person as the Odion-Ologbo of Ofagbe. In 1999, the Appellant joined the 3rd – 8th Defendants as parties to the suit and also brought an application seeking an interim order of interlocutory injunction against the 7th – 8th Defendants. The trial Court dismissed the Appellant’s application on the ground that the Appellant was not diligent in pursuing the substantive suit to its logical conclusion and since the 7th Defendant had already been installed as the Odion-Ologbo of Ofagbe, the interlocutory injunction could not be granted against him. The Appellants have now appealed to this court.
HELD
Appeal Dismissed
ISSUES
Whether the learned trial Judge was right in refusing to grant the interlocutory injunction sought by the Plaintiffs having regard to the facts and particular circumstances of this case.
RATIONES DECIDENDI
INTERLOCUTORY INJUNCTION – FACTORS THE COURT WILL CONSIDER BEFORE GRANTING AN INTERLOCUTORY INJUNCTION
“In an application for interlocutory injunction, the first issue to be determined is whether there is a question of law or legal right or serious issue to be determined in the substantive action. There is no rule requiring an Appellant to establish prima facie case before he can get an interlocutory injunction so long as the Court is satisfied that his case is not frivolous or vexatious and that there is a serious question to be tried see Kotoye Vs. Central Bank Of Nigeria (1989) 1 NWLR (Pt. 98) 419 and Obeya Memorial Hospital Vs. A.G. of the Federation (1987) 3 NWLR (Pt.60) 325 and Ayorinde VS. A.G. Oyo State (1996) 3 NWLR (Pt. 434) 20 at 32. An Interlocutory injunction may be granted in all cases which it appears to the Court to be just and convenient to do so, but it is not normally granted as a matter of course. The applicant has a duty to satisfy the Court that in the special circumstances of his case, he is entitled, on the facts presented by him to the relief. The remedy is entirely discretionally and the governing principles, depending on the facts and the issue in a given case, admit some element of flexibility. The discretion is however one that must be exercised judicially and judiciously.” –
EX-PARTE APPLICATION – RATIONALE FOR GRANTING AN INJUNCTION BY WAY OF EXPARTE APPLICATION
“Blacks Law Dictionary 6th Edition at page 814 defines “Interim” to mean
“In the meantime, meanwhile; temporary; between.”
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 rational 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. Such injunctions are for cases of real urgency, with emphasis on ‘real.’ See Kotoye VS. CBN (1989) 1 NWLR (Pt.98) 419. An injunction is a serious matter and must be treated seriously. See Unibez (Nig) Ltd VS. CBCL Ltd (2003) 6 NWLR (Pt.816) 402. It is a preservatory measure taken at an early stage in the proceedings. See Alcatel Kabemetal (Nig) Plc VS. Ojuegbele (2003) 2 NWLR (PT. 805) 429.” –
INJUNCTION – LIFE SPAN OF AN EX-PARTE INJUNCTION
“By virtue of Order 8 Rule 11 of the High Court Civil Procedure Rules, the life span of the ex-parte injunction 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. And if a motion to vary or discharge an ex-parte order is not taken within seven days of its being filed, the ex-parte order shall automatically lapse. In the instant case the Appellant after obtaining the Order in May, 1984 did not make any move to file a motion on notice.” –
EXPARTE ORDER – COURT WITH THE JURISDICTION TO VARY OR DISCHARGE AN EXPARTE ORDER
“The jurisdiction to vary or discharge an order made ex-parte is almost always vested in the Court that made it. It might be by the same judge or another judge of the same Court. S.A.P(NIG) LTD VS. C.B.N. (supra) at 688.” –
INTERLOCUTORY INJUNCTION – REQUIREMENT OF THE COURT IN ORDERING AN INTERLOCUTORY INJUNCTION
“Where a Court is asked upon an interlocutory application to make an order, the Court must satisfy itself that it has the power to make, at the conclusion of the hearing the same order it is asked to make upon the interlocutory application. See Arjay Ltd V. A.M.S. Ltd (2003) 7 NWLR (Pt. 820) 577, meaning, for an interlocutory injunction to be rightly ordered it must have connection with the subject matter in litigation.” –
ANCILLARY RELIEF – ANCILLARY RELIEF MUST FALL WITHIN THE CLAIM IN THE SUBSTANTIVE ACTION
“It is now well settled that, any application for relief subsequent to the claim before the Court shall be within the purview and scope of the claim. This is because a Plaintiff is limited by his claim as expressed in the writ of Summons and statement of claim. Any departure from the claim so endorsed and to make a new claim gives rise to a new cause of action in respect of which the jurisdiction of the Court has not been invoked by the institution of an action. The jurisdiction of the Court is determined by the claim of the Plaintiff. That is why any ancillary relief must fall within the claim in the substantive action Adenuga & Ors Vs Odumeru & Ors (supra) at 159.” –
JURISDICTION OF COURT- THE CLAIM OF A PLAINTIFF DETERMINES THE JURISDICTION OF COURT
“A Court could not have jurisdiction to grant an injunction when the relief of injunction sought is not in respect of a claim before the Court or parties not joined in the Suit. In order to determine when an action is instituted for, all the Court is required to do is to look at the writ of Summons and the Statement of claim. This is because it is the claim of the Plaintiff which determines the jurisdiction of the Court to entertain same.” –
INTERLOCUTORY INJUNCTION – RIGHT TO OBTAIN AN INTERLOCUTORY INJUNCTION IS INCIDENTAL TO THE PRE-EXISTING CAUSE OF ACTION
“A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the Defendant arising out of an invation, actual or threatened, by him of a legal or equitable right of the Plaintiff for the enforcement of which the Defendant is amendable to the jurisdiction of the Court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the Status quo pending the entertainment by the Court of the right of the parties and granting to the Plaintiff of the relief to which the cause of action entitles him, which may or may not include a final injunction. See Daewoo (Nig) Ltd Vs. Hazcon (Nig) Ltd (1998) 7 NWLR (PT. 558) 438 at 448-449. In effect, an interlocutory injunction must have a connection with reliefs sought and the parties before the Court.” –
INTERLOCUTORY INJUNCTION – NATURE OF AN INTERLOCUTORY INJUNCTION
“It is well known that an interlocutory injunction is a preservatory measure taken at an early stage in the proceedings, before the Court has had an opportunity to hear and weigh fully the evidence on both sides, which is intended to preserve matters. It is also directed to ensure that particular acts do not take place pending the final determination by the Courts of the rights of the parties. See Alcatel Kabelmetal (Nig.) Pic. V. Ojuegbele (2003) 2 NWLR(pt. 805) 429, Omaliko V. Awachie (2002) 12 NWLR (pt780) 1, &. Madubuike V. Madubuike (2001) 9 NWLR (pt719) 698. In other words, interlocutory injunctions are those issued at any time during the pendency of litigation for the short term purpose of preventing injury to the application prior to the time that the Court will be in a position to either grant or deny permanent relief on the merit.” –
CASES CITED
Not Available
STATUTES REFERRED TO
High Court Civil Procedure Rules|