CORAM

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PARTIES

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DR. SAMUEL AMAECHI

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ELDER IWEZOR NWEKE-WORLU

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Respondents had instituted an action against the Appellants at High Court of Rivers State wherein they sought for a declaration: that the Respondents from Avuha family of Rumuichiorlu Community, Eneka in Obio/Akpor Local Government Area of Rivers State are the owners of the large expanse of land known as and called “Okporo Avuha” lying and situate at Eneka in Obio/Akpor Local Government Area of Rivers State, wherein the 2nd Set of Appellants facilities are situate and not the 1st set of Appellants; that the acquisition of a leasehold on the 1st day of August, 2011 over part of the land in dispute by the 2nd Set of Appellants from the 1st Set of Appellants instead of the Appellants’ Avuha family is null and void; an order directing the 2nd Set of Appellants to pay the sum of N30,000,000.00 (Thirty Million Naira) only, to the Respondents as sum due to them for the use of the Respondents’ land for the duration of the lease; amongst other reliefs in the alternative. Later in the proceedings, the Respondents filed an Application for Interlocutory Injunction, which application was heard and adjourned for ruling. Before the said Ruling was delivered, 1st Set of Appellants who had earlier filed another Motion on Notice drawn the attention of the Court to a sister case, urging the Court to take judicial notice of the Writ of Summons in PHC/2748/2018 pending before another Judge which touches on the subject matter in the instant Suit. The lower Court stated that the 1st Set of Appellants’ Motion on Notice was a ploy to arrest the ruling, after which it proceeded to deliver its ruling, wherein it granted the claimants’ application for interlocutory injunction. Aggrieved by the ruling of the lower Court, the Appellants had appealed against same vide their Notice of Appeal containing 4 Grounds of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the trial Court was right in granting an order for interlocutory injunction against the Appellants based on the facts and circumstances of this case?

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RATIONES DECIDENDI

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MOTION – MOVING OF MOTIONS

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Moving of a Motion does not have to be formal. The purport of the Motion stared the Court in the face. Learned Counsel for the Applicant openly stressed it.
In OYELESE & ORS vs. INEC & ORS (2011) LPELR-4819(CA), IKYEGH, J.C.A. had this to say on this point:
“The fact that learned Counsel for Applicants did not adopt the monotorious traditional method of refrain used in moving matter in the lower Courts but chose the crisp approach common in moving matter in appellate Courts did not detract from the net result that he moved the application.”
In essence, what the Motion on Notice was designed to do was to prevent the delivery of the Ruling of Motion for Interim Injunction by the learned trial Judge. This is illegal and unsupported by the Rules of Court. See UKACHUKWU vs. PDP & ORS 2013 (2014) ALL FWLR (pt. 728) p. 887; NEWS WATCH COMMUNICATIONS LTD vs. ATTA (2006) 12 NWLR (pt. 993) 144 at 178-179. The learned trial Judge was therefore right in so holding. –

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ONUS OF PROOF – ONUS OF PROVE ON THE PARTY ALLEDGING ERROR IN TE PROCEEDINGS OF THE LOWER COURT TO SHOW HOW THE ERROR OCCASSIONED INJUSTICE

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One may ask, what injustice was caused by the attitude of the learned trial Judge to the Motion on Notice, assuming his Lordship was wrong. If the Court did not take judicial notice of the Suit PHC/2748/2018 how would it have impacted the Ruling? This has not been shown by the Appellants. It is not enough to identify an error in the proceedings of the lower Court, such error must be shown to have resulted in injustice. See AMADI vs. N.N.P.C. (2000) 10 NWLR (pt. 674) p. 76; DAMINA vs. STATE (1995) 8 NWLR (pt. 415) p. 53. –

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INTERLOCUTORY INJUNCTION – THE PRINCIPLES GOVERNING THE GRANT OF INTERLOCUTORY INJUNCTION

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The Supreme Court explained the principles clearly in ADELEKE & ORS vs. LAWAL &ORS (2014) 3 NWLR (pt. 1393) p. 1, KUMAI AKA’AHS, JSC explained thus:
“In BUHARI vs. OBASANJO (2003) 17 NWLR (pt. 850) 587, this Court per Tobi, JSC spelt out the principles guiding the application of Interlocutory Injunction at pages 648-649 as follows: Some of the principles or factors to be considered in an application for Interlocutory Injunction are:
(1)There must be a subsisting action. See THE PRAYING BAND OF S&C vs. UDOKWU (1991) JNWLR (pt. 182) 716.
2.The subsisting action must clearly donate a legal right which the Applicant must protect. See KOTOYE vs. CBN (1989) 1 NWLR (pt. 98) 419; WOLUCHEM vs. WOKOMA 91974) 3 SC 153; OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (1987) 3 NWLR (pt. 60) 325.
3.The Applicant must show that there is a serious question or substantial issue to be tried. See KOTOYE VS. CBN (supra); NIGERIA CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (pt. 12) 306; NWOSE VS. MBAEKWE (1973) JECSLR 136.
4.And because of (3) above the status que should be maintained pending the determination of the substantive action. See KOTOYE VS. CBN (supra); FOLLOWERS vs. FISHER (1975) 2 ALL ER 829; AMERICAN CYANAMID CO vs. ETHICON LTD (1975) AC. 396.
5.The Applicant must show that the balance of convenience is in favour of granting the application. See KOTOYE vs. CBN (supra); OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (supra); AKINLOSE vs. A.I.T. LTD (1961) WNLR 116.
6.The Applicant must show there was no delay on his part in bringing the application. See KOTOYE vs. CBN (supra).
7.The Applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect. See KOTOYE vs. CBN (supra); OBEYA MEMORIAL HOSPITAL vs. ATTORNEY GENERAL OF THE FEDERATION (supra).
8.The Applicant must make an undertaking to pay damages in the event of a wrongful exercise of the Courts discretion in granting the injunction. See KOTOYE vs. CBN (supra); ITAMA vs. OSARO (2000) 6 NWLR (pt. 661) 515.”
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INTERLOCUTORY INJUNCTION – PURPOSE OF THE GRANT OF INTERLOCUTORY INJUNCTION

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The purpose of an order of interlocutory injunction is to preserve the RES. See ADELEKE & ORS vs. LAWAL & ORS (supra). This was what the learned trial Judge did. The averments in the affidavit show that the land in dispute is a farmland and excavation of land and erection of building thereon might change the nature of the RES irredeemably. –

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FAIR HEARING – EFFECT OF LACK OF FAIR HEARING

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Undoubtedly, the law is well settled, that no decision of a court of law, no matter how well articulated and conducted, can be allowed to stand, unless it passes the acid test of according the respective parties the fundamental right to fair hearing. Thus, where the decision of a court of law or tribunal is apparently in breach of the parties’ right of fair hearing as cherishingly enshrined in the Constitution of the Federal Republic of Nigeria, 1999 as amended, that decision ought not to be allowed by an appellate court of competent jurisdiction, to see the light of the day, as it is a nullity. See UTOO VS. FEESE (2017) LPELR – 44037 (CA); IDAKWO VS. EJIGA (2020) 7 SC (PT. 11) 168; SAMBA PET. LTD VS. 1MM PLC (2020) (pt. 1)MJSC 103. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act, 2011|

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CLICK HERE TO READ FULL JUDGMENT

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