Legalpedia Citation: (2023-05) Legalpedia 70085 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Thu May 18, 2023

Suit Number: CA/ABJ/CV/290/2022

CORAM

ITA GEORGE MBABA JCA

SAIDU TANKO HUSSAINI JCA

SYBIL ONYEJI NWAKA GBAJI JCA

PARTIES

ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)

APPELLANTS

1. KOGI STATE GOVERNMENT
2. MOMOH JIBRIN (Account General, Kogi State)
3. MUKADAM ASIRU ASIWAJU (Commissioner Of Finance, Budget And Economic Planning, Kogi State)
4. STERLING BANK PLC
5. CENTRAL BANK OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTION, EVIDENCE, FINANCIAL CRIME, PRACTICE AND PROCEDURE, TORT

SUMMARY OF FACTS

The 1st to 3rd Respondents (as Plaintiffs) had instituted their grievances with the Appellants and the 4th and 5th Respondents. The Appellant (1st Defendant’s) publication titled ‘Hidden N19.3bn Kogi Salary Bali-Out Funds returned to CBN made on 19th day of November, 2021 on her Facebook page containing amongst others false and unfounded allegations of N19, 333, 3331 333. 36 being returned from Kogi State Bailout account, which portrays fraud and misappropriation of public fund against the Claimant, is defamatory of the character of the Claimants by the Defendants. This was the substance of the claim. The claimants asked the court to declare the publication illegal, null and void. They also asked the court to compel the Appellant to retract the allegations and tender unreserved apologies. They also asked for a perpetual injunction restraining the 1st Defendant either acting by itself, or through agents, privies, howsoever described from any further publication of the defamatory words complained of or any other similar libelous articles about the Claimant or in any other manner and to restrain all the above mentioned from continuing in the dissemination, distributing, or further publication of the defamatory words complained of or any other similar libellous articles about the –Claimant. They further prayed for an interim injunction restraining the 1st Defendant/Respondent, its allies, agents, representatives, associates or whoever is acting for them or through them, from doing anything either by way of publication or print or electronic media or issuing any official or unofficial publication in any print or electronic media, including online publication on its website or Social media, both locally and internationally, with respect to the issues involving Account No. 0073572696 or any other account, purportedly belonging to the 1st Claimant/Applicant, domiciled with Sterling Bank Plc or any other bank registered and operating in Nigeria, pending the hearing and determination of the Motion on Notice for interlocutory injunction. Last but not least, they asked the court to grant an order of Injunction restraining the 1st Defendant/Respondent its allies, agents, representatives, associates or whoever is acting for them or through them from doing anything, either by way of inviting officials of the 1st Claimant or requesting for any document with respect to the issue involving Account No. 0073572696 or any other account, purportedly belonging to the 1st Claimant/Applicant domiciled with Sterling Bank Plc or any other bank registered and operating in Nigeria, or otherwise relating or pertaining to the affairs of the 1st Claimant whatsoever or its employees, appointees or associates, pending the hearing and determination of the Motion on Notice for Interlocutory Injunction. The court granted most of the prayers against the appellant hence the instant appeal. The Appellant raised objections but they were dismissed hence the instant appeal.

HELD

Appeal allowed in part

ISSUES

Ø Preliminary Objection?

Ø Whether the trial Court was right to assume jurisdiction over the claims of the 1st to 3rd Respondents, in view of Appellant in the suit, being a Federal Agency?

Ø Whether the trial Court was right to impose an Interim Injunction against Appellant in the suit, particularly as to the 2nd enrolled order by the Court, since 3rd December, 2021 and the same is still pending?

RATIONES DECIDENDI

NOTICE OF APPEAL – SERVICE OF NOTICE OF APPEAL

By the Provision of Order 2 Rule 1(a) of the Court of Appeal Rules, 2021:

“Every Notice of Appeal shall, subject to the provisions of Order 2 Rule 8, be served on the Respondent, personally, or by electronic mail to the electronic mail address of the Respondent: Provided that if the Court is satisfied that the Notice of Appeal has, in fact, been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice of Appeal was not served in accordance with this rule.”

The above Provision was enforced in the case of Odey Vs Alaga (2021) 13 NWLR (Pt.1792) 1 by the Supreme Court. See also Saleh Vs Abah (2017) 12 NWLR (Pt.1578) 100 (SC), Emerald Energy Res. Ltd Vs Signet Advisors Ltd (2021) 8 NWLR (Pt.1779) 579 (CA), where it was held:

“… there is a game changer in the Proviso to Order 2(1) (a) that excuses personal service in some instances. By the Proviso, this Court will not insist on personal service and indeed the respondent cannot insist on personal service, if “the Court is satisfied that the notice of Appeal has in fact, been communicated to the respondent.” In a situation such as this, where there was no personal service of the notice of appeal, the Court will not decline jurisdiction or the Court will not allow any objection to the hearing of the appeal on that ground, once the Court is satisfied that the notice of appeal has been communicated to the respondent…” – Per I. G. Mbaba, JCA

NOTICE OF APPEAL – WHEN THE RECORD OF APPEAL CONTAINING NOTICE OF APPEAL IS SERVED

The 1st to 3rd Respondents have filed their brief to defend the decision and ruling of the trial Court in this appeal, and that Respondents’ brief is founded on the Records of Appeal transmitted to this Court, on 21/3/2022, and on the Appellant’s brief. The said Records of Appeal carries the Notice of Appeal on Pages 682 to 689 of the Records, and on Page 690 of the Records of Appeal, there is a certification by the Registrar of the lower Court to the effect “that Notice of Appeal in the above case was duly served upon Kogi State Government & 4 Ors, the Respondents herein.”

This Court has to believe that certification, being official communication by the Registry of the lower Court.

Having therefore not denied receiving the Records of Appeal, which also carries the Notice of Appeal, and having filed their brief in this appeal, I think the learned Counsel for 1st to 3rd Respondents misfired, greatly, by challenging our jurisdiction to hear this appeal, on the feigned claim that they were not served with the Notice of Appeal, personally.

By the way, how can the 1st Respondent (Government of Kogi State) be served with the process, personally, except by its servant(s) or through its office?

I am satisfied that 1st to 3rd Respondents were communicated with the notice of this appeal, and they have taken due step(s) to contest the appeal. I have always deprecated such attitude of Counsel trying to frustrate appeal for such reasons. See the case of Bako & Anor Vs Dantata Investment & Securities Co. (2022) LPELR – 58070 CA, where I said:

“…issue of service of originating processes of Court on defendants, personally, always appears strange to me, where/when the person complaining, about service, is before the Court, upon being served, and is the one who engaged counsel to appear for him, in the suit, but to contest or protest the service! In the case of Nwarie Vs Nwankwo (2022) LPELR-57656 (CA), my Lord, Owoade JCA, relying on my earlier decision in the case of Zaria Local Govt. Council & Anor Vs Kwastan (2014): CA/K/151/2009 of 17/1/2014, had stated as follows: “Indeed, a defendant improperly served with Court processes has a duty to promptly protest. The Appellant/Defendant having not objected to the nature of service on her at the earliest opportunity agrees or he is deemed to agree that the Court has the power to bind her by its actions and waives the right to raise any jurisdictional defects afterwards i.e. by claiming that the service was improper. See Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 379, Ariori v. Elemo (1983) 1 SCNLR 1, Job Charles v. Okonkwo (2002) FWLR (Pt. 117) 1067, First Inland Bank Plc v. Gilbert Fiddi (2013) LPELR-20832 (CA) 20. The judgment of this Court per Mbaba, JCA in the case of Lt. Col. Eric Oseni (Rtd) v. Dele Oloje Esq. & Anor (2014) LPELR-22919 (CA) Pp. 15-16 tellingly puts the matter of waiver of irregularity of service beyond doubt: “This point was made recently by the Court in the case of Zaria Local Government Council and Anor v. Alh. Salihu Ali Kwastan: CA/K/151/2009, delivered on 17/1/2014, where we held: “for me, it sounds ridiculous as it beats every sense of logic and reasoning, for a man, who has been served with the process of Court and for which he responded by entering his appearance and filing processes in his defence to contest the case, and at the end of the case, to turn around and seek to nullify the judgment, on the grounds that there was no due service of the originating process on him, particularly that no affidavit of service was deposed to by the Plaintiff, that he had not been served with the process of the Court that originated the case. That is pondering to ridiculous level to use of technicalities to frustrate justice! Having come to Court and taken part in the proceedings, without complaint of any sort, I believe the Appellants cannot, in good conscience, raise any issue of non-compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. After all, the purpose of that provision of the law was to ensure that a Respondent is duly served with the process of Court, before a Court can hear the Applicant.” In the instant case, having filed processes and/or participated in the proceedings the Appellant cannot now complain of improper service of originating process.” Such arguments against service, in such circumstances do not add any value to the course of justice in our jurisprudences in my view.”

See also Onwuneme & Anor Vs Onuzuruike & Ors (2019) LPELR – 48419 (CA):

“The Respondents had also complained about non-service of the Notice of Appeal on them, or the same being incompetent. However, they admitted service of the Records of Appeal wherein the Appellant’s” Notice of Appeal are also incorporated. And in the said Records of Appeal (the last page thereof) there is certification by Appellants’ Counsel “that the Respondents were served with the Notice of Appeal in this Appeal.”

There is compliance of Appellants with paragraph 7 of the Practice Direction on the filing of the Notice of Appeal, and in requisite copies and payment of fees for service on all the Respondents. Even if the Secretary of the Tribunal had not served the Respondents with the Notice of Appeal, as stipulated in paragraph 8 of the Practice Direction, the fact that the Records of Appeal (with the Notice of Appeal, had been served on the Respondents therein), in my view, that has satisfied the requirement of the law, to accord respect to the processes, and that the Respondents were duly served.

By Order 2 Rule 1 (a) of the Court of Appeal Rules, 2016:

“Every Notice of Appeal shall subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the Notice of Appeal has, in fact, been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice of Appeal was not served, personally.” – Per I. G. Mbaba, JCA

JURISDICTION – JURISDICTION OF THE FEDERAL HIGH COURT

I think the hype generated as to whether the trial Court, Kogi State High Court had jurisdiction to entertain the suit, Appellant being an Agency of the Federal Government, was quite unnecessary, in view of the many judicial decisions, that tortious actions like detinue, negligence and defamation are outside the jurisdictional scope of the Federal High Court, but triable by State High Court. See Rahman Brothers Ltd Vs NPA (2019) LPELR – 46475 (SC), FRSC & Ors Vs Akpos (2021) LPELR – 52917 (CA) and University of Calabar Vs Henry Mensah (2020) LPELR – 50638 CA, where it was held:

“The Federal High Court has no jurisdiction to adjudicate on torts and this position has long been judicially settled. A community reading of Section 7 of the Federal High Court Act and Section 251 (1) of the Constitution makes it abundantly clear that exclusive jurisdiction of the Federal High Court is not simply assured by the mere fact that the defendant to the action is an agency of the Federal Government but coterminous to this is that the subject-matter must be within the jurisdiction of the Federal High Court. See RAHMAN BROTHERS LTD VS. NPA (2019) LPELR-46415 (SC), NNPC VS ORHIOWASELE (2013) 13 NWLR (PART 1371) 211, PORTS & CARGO HANDLING AND C.H.S.C LTD VS MIGFO NIG. LTD (2012) 18 NWLR (PART 1333) 555, GAFAR VS GOVERNMENT OF KWARA STATE (2007) 4 NWLR (PART 1024) 375 and SITA & ANOR V. MAEVIES LTD (2014) LPELR-24159 (CA).”

In the case of Anao Vs The Sun Publishing Ltd & Ors (2012) LPELR – 14328), it was held:

“Having said so much above and having followed the guiding principles as laid down by the authorities, it is my honest opinion that the Federal High Court has no jurisdiction to adjudicate Appellant’s claim based on tort. That issue has been established by the Supreme Court in ADELEKAN Vs ECU LINE NV (2006) 12 NWLR (PART 993, 33) AT 52. Since the case under consideration is founded on Libel the Federal High Court has no Jurisdiction to entertain the appellant’s claim. He has therefore initiated his case in a proper Court, i.e. the High Court of Edo State notwithstanding that the appellant was the Vice Chancellor of the Federal University. The decision of the learned trial Judge was erroneous. The appellant is a separate entity from the University of Benin.” Per SHOREMI, JCA

The law is trite that while Section 251(1) of the 1999 Constitution donates jurisdiction to the Federal High Court in matters listed therein particularly where the Federal Government or any of its agencies is a party to the action, but regards is also always had to the subject matter in litigation to determine whether the exclusive jurisdiction of the Federal High Court can be protected or defeated. See the case of Garba Vs Birniwa (2013) LPELR – 21478, where we said:

“We have stated, over and over again, as per the decisions of this Court and of the Apex Court, that the mere involvement of the Federal Government, Federal Department or Federal Government Agency in a case does not make the matter to fall within the jurisdiction of the Federal High Court, or outside the jurisdiction of the State High Court (or of the Federal Capital Territory). What determines jurisdiction of a Court, apart from the Statute that established the Court, is the subject matter to be litigated upon, and this (subject matter) is usually determined by the Claim of the plaintiff. See the case of ABU VS ODUGBO (2001) SCNJ 262, ADEYEMI VS OPEYORI (1976) 9 – 10 SC 31, NEPA vs. EDEGBERO (2003) FWLR (pt. 139) 1556, ADEMOLA VS. ADETAYO (2005) ALL FWLR (pt. 259) 1966 at 1988 – 1992. The proviso to the Section 251(1) (p) (q) and (r) of the 1999 Constitution (as amended), has also cleared every confusion, as to the fact that nothing in the provisions of paragraphs (p), (q) and (r), referred above “Shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

See also Olayemi & Ors Vs FHA (2022) LPELR – 57579 (SC), where it was held:

“There is no doubt that Section 251 of the 1999 Constitution as amended, vests jurisdiction on the Federal High Court to determine cases where the agency of the Federal Government is made a party to the suit. However, the principal claims must be against such an Agency of the Federal Government, before the Federal High Court can assume jurisdiction. That in my view means that the Court has a duty to ascertain that it is the principal reliefs in the matter that is against the Federal Government or any of its agencies and not the ancillary reliefs. This, therefore, means that each case must be considered upon its peculiar facts and circumstances to determine whether a relief thereof is principal or ancillary. This Court has, in a multiplicity of its decisions, held that the fact that an action is against the Federal Government or its agencies, does not ipso facto bring the case within the jurisdiction of the Federal High Court. The subject matter of the action must fall squarely within the jurisdiction of the Federal High Court before that Court can assume jurisdiction.” In Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172 at 236 – 237, this Court held that: “…The fact that the action was against the Respondents does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless and until other requirements of the law touching on the subject matter of the claims, is also satisfied. In other words, the subject matter of the action must fall squarely within the jurisdiction of the Federal High Court, before the Court can assume jurisdiction in a case against the Federal Government or any of its agencies.” Similarly, in Rahman Brothers v. NPA (2019) LPELR 46415 SC, this Court posited that: “It is settled law that the question of jurisdiction is fundamental and crucial to adjudication and that the very fact of its absence automatically results in a nullity of proceedings no matter how well conducted. It is for the above reason that it is further settled law that when raised in a proceeding, it must be specifically dealt with and resolved. There is no doubt that respondent/cross-appellant is a Federal Government Agency but it is the contention of learned senior counsel for respondent/cross-appellant that the status of the said respondent/cross-appellant as a Federal Government Agency, without more, does not confer the requisite jurisdiction on the Federal High Court to hear and determine the action as constituted particularly as the cause of action as before the trial Court is grounded on negligence and landlord and tenant relationship… Once again, I have to repeat that thought… the Respondent is an Agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court, exercise its jurisdiction unhindered.” Per ABOKI, JSC (Pp. 24-27, paras. E-B)

It is agreed by Counsel on both sides, that the subject matter of the litigation was defamation by the Appellant of 1st to 3rd Respondents. The declaratory reliefs also stated so.

Whether the 1st Respondent and the 2nd and 3rd Respondents possessed the requisite locus standi to initiate the action is what will be determined in the course of trial of the case, and I do not think that can be resolved by this appeal. But it should be obvious, that being a claim in defamation, the trial State High Court possesses the requisite power to hear and determine it, the inclusion of Appellant as a party, notwithstanding. – Per I. G. Mbaba, JCA

INTERLOCUTORY APPLICATIONS – CONDUCT OF COURTS REGARDING INTERLOCUTORY APPLICATIONS

By issuing interim orders restraining Appellant, by itself, agents, allies etc. from doing anything, either by way of publication or print… or issuing any official or unofficial publication in any print or electronic media… both locally and internationally, with respect to the issues involving the account complained of… pending the hearing of the motion on notice; and from doing anything by way of inviting officials of the 1st Respondent (Claimant) or requesting for any document, with respect to the issue involving the account complained of, the trial Court appears to have compromised and pre-empted the outcome of the case! It shows the trial Court had believed the claims of Claimants (1st – 3rd Respondents), before hearing the case, and without hearing from the Defendants (Appellant, in particular).

I think the trial Court was reckless and abusive of its judicial powers, by so doing, and to allow such perverse order to remain/subsist, till today, despite application to set it aside, is difficult to comprehend, by me.

The law is that a Court must not delve into the substantive of a case while taking interlocutory or interim application. See In Re-Abdullahi (2018) LPELR – 45202 (SC):

“The law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application – see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observed – A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the parties in the real issues in litigation between Parties.” Per AUGIE, JSC (Pp. 24-25, paras. E-D)

See also Nataalu & Anor Vs Muhammad & Ors (2022) LPELR – 57911 CA:

“The law is trite, that while considering an interlocutory application, the trial Court must restrain itself from commenting on the substance of the main case, ahead of time, or from delving into the substantive matter. See Abdullahi Vs Nigerian Army & Ors (2018) LPELR – 45202 (SC), where it was held: “The law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application – see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observe – A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the parties in the real issues in litigation between Parties.” Per AUGIE, JSC” Per MBABA, JCA (Pp. 10-11, para C) – Per I. G. Mbaba, JCA

COURTS – CONDUCT OF COURTS WHEN HANDLING THEIR CASES

The law is also that the Court must dwell within the confines of the matter/issues raised before it, and is not permitted to wander onto other issues at its whims and caprices. See Idris Vs Gada & Ors (2023) LPELR – 59349 (CA):

“The law is trite, that a trial Court must not go outside the case presented by the parties, to make case for any party, and it must dwell within the confines of the credible evidence, adduced, to base its decision. See the case of Nnanna Vs Sa’id & Anor (2022) LPELR – 57396 CA: “The law is trite, that the trial Court or any Court is bound to confine itself to the case presented by the Plaintiff (parties) and rule on the same. See the case of Ironkwe Vs UBA Plc (2017) ALL FWLR (Pt. 879) 650 at 685, where it was held: “Judges are not allowed by the law to speculate or conjecture on possible facts. They do not have such jurisdiction…” And in the case of INEC Vs Atuma & Ors (2013) 57 MJSC (Pt.1) 29 at 52, it was held by the Supreme Court: “The Court must base its determination on the case as presented by the parties and not deviate from it. A Court should not make a case different from the one made by the parties.” In the case of Osolu Vs Osolu & Ors (2003) LPELR-2810 (SC); (2003) ALL FWLR (PT 172) 1777, it was held: “It is trite law that in the determination of disputes between the parties in a Court, the decision must be confined to the issues properly raised by the parties. It is not competent for a Court, suo motu, to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See for example Adeniji v. Adeniji (1972) 1 All NLR (Pt. 1) 298, Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410. When an issue is not properly placed before the Court, the Court has no business whatsoever to deal with it. See Olusanya v. Olusanya (1983) 1 SCNLR 134, (1983) 3 SC 41, Ebba v. Ogodo (1984) 1 SCNLR 372.” Per MUSDAPHER, JSC See also State Vs Oladimeji (2003) LPELR – 3225 (SC), Adeleke Vs Aserifa (1990) LPELR – 116 (SC), Chidoka & Anor Vs First City Finance Co. Ltd ?(2012) LPELR 9343 (SC), and the case of Obi Vs AG of Imo State (2014) LPELR – 24280 (CA) where we held: “…A trial Judge must not be seen to descend into the arena of conflict in a trial, to generate evidence or facts not canvassed or adduced by witness(es) or apparent on the face of the records before him, to decide a case. See the case of Theophilus Ajakaiye vs. The State: CA/OW/70C/2012, delivered by this Court on 5/12/14; Ayoade vs. Spring Bank Plc (2014) 4 NWLR (Pt 1396) 93 AT 128.” See also INEC Vs Atuma & Ors  (2013) 57 MJSC (Pt.1) 29 at 52:

“The Court must base its determination on the case as presented by the parties and not deviate from it. A Court should not make a case different from the one made by the parties.”

In the case of Osolu Vs Osolu & Ors (2003) LPELR – 2810 SC, it was held:

“It is trite law that in the determination of disputes between the parties in a Court, the decision must be confined to the issues properly raised by the parties. It is not competent for a Court, suo motu, to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See for example Adeniji v. Adeniji (1972) 1 All NLR (Pt. 1) 298, Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410. When an issue is not properly placed before the Court, the Court has no business whatsoever to deal with it. See Olusanya v. Olusanya (1983) 1 SCNLR 134, (1983) 3 SC 41, Ebba v. Ogodo (1984) 1 SCNLR 372.” Per MUSDAPHER, JSC. – Per I. G. Mbaba, JCA

 

EX-PARTE APPLICATIONS – CONDUCTS OF THE JUDGES IN GRANTING EX-PARTE APPLICATIONS

By law, ex parte application is sparingly permitted or granted, and the Judge is expected to command some divine attributes of unquestionable sense of justice, to know when to grant or refuse ex parte application, to maintain the sanctity of the judicial process.

Where a party has difficulties to serve Court processes he can file ex parte application to serve the evasive opponent; he uses ex parte motion to serve the party by substituted means. But where a case is already pending and parties have been served with the process, if a party has need to invoke the power of the Court to attain any advantage in the case, he has to put his opponent on notice, by way of Motion on Notice. No ex parte application can be entertained at this stage, except the issue involved is of extreme urgency and importance, capable of extinguishing the RES, if not attended to by way of Interim Order/Intervention, pending the hearing of the other party on the issue, by way of Motion on Notice, for interlocutory injunction. Thus, interim order is only permitted in a situation of extreme emergency, to arrest a life-threatening/urgent problems. And it can only last for a very short period, usually 7 days or pending the date of the Motion on Notice. See Brittania-U Nig. Ltd Vs Seplat Pet. Dev. Co. Ltd & Ors (2016) LPELR – 40007 (SC):

“It is to be noted that an interim injunction is not an open-ended restriction order but one for a short period of time, preservatory in nature at the early stage in the proceedings. It is like first aid, an emergency intervention which is made before a patient gets into hospital and can be administered even by non-medical personnel pending the patient’s getting to hospital.

In like manner, an ex parte order of injunction is not intended to be a temporary victory to be used against the adverse party indefinitely rather an interim order of injunction is to last for a short period pending the determination of motion on notice and not to hang on the opposing party or to overstay. See Alhaji Aminu Ahmed & Co. Nig. Ltd v. ACB Ltd (2001) 10 NWLR (pt.721) 391, General Oil Ltd v Oduntan (1990) 7 NWLR (pt. 163) 423 at 441.” Per PETER-ODILI, JSC (Pp. 94-95, paras. E-C)

See also Nwaigwe Vs Amaechi & Ors (2017) LPELR – 43080 (CA), Kubor Vs Dickson & Ors (2012) LPELR – 9817 (SC), Nwawuba Vs Ezeabasirim & Ors (2018) LPELR – 46273 CA:

“The trial Court rather dabbled into a lengthy consideration of preliminary complaints associated with the motion for Interlocutory Injunction, filed by the Plaintiffs on 13/9/2007 (yet to be moved), and handed down what it called “Order at Interim Injunction”, claiming to base it on a verbal information given to the Court by Plaintiffs’ Counsel, E.E. Nwonye Esq; that the activities of the Defendants and/or their agents at the location of meeting place of the Plaintiffs Town Union. (See pages 66 to 68 of the Records).

It is on record that after handing down the said Interim Injunction, threatening each of the Defendants with five Hundred Thousand Naira (N500,000.00) fine, if any disobeyed its order, the trial Court adjourned the suit, specifically “for the hearing of the motion challenging the competence of the suit.” (Page 68 of the Records)

But when the case came up, on the 23/11/07, when it was adjourned for the motion challenging the competence of the suit, the trial Judge, completely, went off course, into another frolic; holding the Appellant guilty of flagrant disobedience of the Court Order of 15/10/2007! The Learned trial Judge appeared to have forgotten about the business of the Court for that day, and decided to entertain what he called the Oral submission of the Plaintiffs’ Counsel, E.E. Nwoye Esq; that Appellant disobeyed the Order of 15/10/2007!

Of course, the alleged disobedience to the Court order was deposed to in a further affidavit in support of the Interlocutory Application, (which was yet to be argued and was not stated for hearing that day).

“It shows that the trial Judge had no firm control over his Court, and did not follow set down rules of procedure or Court practice. A Court must be guided and guarded by its rules and must not yield/surrender its powers/authority to a Counsel or any person, no matter how influential or eloquent, to distract, confuse or steer it off the course of sound discretion and principles of justice, to compromise its rules and set goals. It is also trite that a Court must confine itself to the case and issues properly raised before it, and is not permitted to extend the frontiers of the battle fought by both parties.” – Per I. G. Mbaba, JCA

 

JURISDICTION – JURISDICTION IN CLAIMS BOTHERING ON DEFAMATION AND DEFAMATORY MATERIALS

I hold that this appeal shall be allowed in part only as the State High Court has jurisdiction under Section 272 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to entertain claims bothering on defamation and defamatory materials notwithstanding that the claim is against an agency of the Federal Government of Nigeria, as in the Appellant herein. The Federal High Court under Section 251 (1) of the Constitution of FRN (as amended) has no business with the affairs concerning claims related to defamation. – Per S. T. Hussein, JCA

 

CASES CITED

NIL

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. EFCC Establishment Act 2004
3. Court of Appeal Rules, 2021
4. Court of Appeal Rules, 2016
5. Federal High Court Act

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