LAWRENCE S.U.AZUH VS UNION BANK OF NIG. PLC

CORAM

MARY UKAEGO PETER ODILI, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

MARY UKAEGO PETER ODILI, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

MARY UKAEGO PETER ODILI, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

PARTIES

LAWRENCE S.U.AZUH APPELLANTS

UNION BANK OF NIG. PLC

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This is an appeal against the judgment of the Court of Appeal, Benin Division affirming the exparte interim orders granted by the High Court of Delta State sitting in Asaba. The Appellant was the branch officer of the Respondent’s bank which was defrauded of some money to the tune of N 89, 958, 931.46 (Eighty- nine million, nine hundred and fifty – eight thousand, nine hundred and thirty -one naira, forty- six kobo). The police after its investigation charged the Appellant and six others with the offence of stealing at the Magistrate Court. The Appellant was granted bail after his plea was taken. Afterwards the Respondent brought an application in the High court praying the court to grant an order of interim injunction restraining the Appellant from travelling out of the country amongst other reliefs and same was granted. The Appellant being aggrieved with the order made, appealed to the Court of appeal against the grant of those interim orders. The lower court dismissed the appeal hence this appeal to the Apex court.

HELD

Appeal allowed.

ISSUES

1. Whether the learned Justices of the Court of Appeal were right in holding that the learned trial Judge had jurisdiction to grant the interim orders of injunction against the appellant?

RATIONES DECIDENDI

NON – JOINDER OF A PARTY- EFFECT OF NON – JOINDER OF A PARTY IN A SUIT

“Non-joinder of a necessary, party in a suit is an irregularity that does not affect the competence or jurisdiction of the court to adjudicate on the matter before it.” PER KEKERE-EKUN, JSC

INTERIM OR INTERLOCUTORY INJUNCTION – EXERCISE OF DISCRETION OF COURT IN GRANTING AN ORDER OF INTERIM OR INTERLOCUTORY INJUNCTION

“The grant of an order of interim or interlocutory injunction is an equitable remedy within the discretionary powers of the court. As with all exercise of discretion, the power must be exercised judicially and judiciously, taking all relevant circumstances into account.” PER KEKERE-EKUN, JSC

JURISDICTION OF THE HIGH COURT- JURISDICTION OF THE HIGH COURT IN GRANTING RELIEFS

“The trial High Court has no jurisdiction to hear and determine the reliefs which are not predicated on the pending suit before it but which are predicated on the pending action or suit in another Court, be it civil or criminal case.” PER MOHAMMED JSC

CRIMINAL PROCEEDINGS – ON WHO RESIDES THE POWER TO INSTITUTE CRIMINAL PROCEEDINGS

“Notwithstanding the fact that individuals or corporate entities may be victims of crimes, the power to institute criminal proceedings resides in the Attorney-General of the Federation or of a State, as the case may be by virtue of Sections 174 and 211 of the 1999 Constitution (as amended). Such power may be exercised by the Attorney-General himself or through any officers of his department. In appropriate circumstances, the Attorney-General may instruct a private legal practitioner to appear on his behalf.” PER KEKERE-EKUN JSC

RIGHT TO FREEDOM OF MOVEMENT- WHEN CAN THE RIGHT TO FREEDOM OF MOVEMENT BE CURTAILED BY A COURT

“Where criminal charges are pending against an accused person, his right to freedom of movement pending the determination of the case may be curtailed by the court seised of the matter or by a higher court, depending on the nature of the offence.” PER KEKERE-EKUN, JSC

EXERCISE OF DISCRETION- INTERFERENCE BY AN APPELLATE COURT IN THE EXERCISE OF DISCRETION BY THE LOWER COURTS

“Where exercise of discretion is carried out in a capricious fashion, as done by the two courts below herein, such equates with compelling reason that will make this court to interfere with such screwed exercise of discretion.” PER FABIYI JSC

INJUNCTION – POWER OF A COURT OF LAW TO GRANT AN INTERIM OR INTERLOCUTORY INJUNCTION

“The power to grant an interim or interlocutory order of injunction is one of the inherent powers of a court of law for the enhancement of the administration of justice. By virtue of the powers conferred on the High Court by Section 6 (6) (a) of the 1999 Constitution (as amended) and the provisions of Order 8 Rule 7 (2) of the High Court (Civil Procedure) Rules 1988 of Bendel State applicable in Delta State, the High court has the power to grant an ex-parte order of interim injunction upon the fulfilment of certain conditions.” PER KEKERE-EKUN, JSC

EXPARTE INTERIM INJUNCTIONS – PROCEDURE ADOPTED BY A COURT WHERE A PARTY SEEKS BOTH AN EX-PARTE INTERIM INJUNCTION AND AN INTERLOCUTORY INJUNCTION

“The law on this subject of ex-parte interim injunctions is also well settled that a person who seeks an interim order ex-parte while also applying for an interlocutory injunction as was the situation in the present case, files two motions simultaneously, one ex-parte asking for the interim order and the other one on notice applying for an interlocutory injunction pending the determination of the substantive suit. The Court before which the applications are filed takes the ex-parte motion, and if satisfied that it has merit ex-facie, grants it making the order to last up to the date when the motion on notice shall be heard.” PER MOHAMMED JSC

DISCRETION- EXERCISE OF DISCRETION

“Discretion should be exercised judicially and judiciously as well.” PER FABIYI JSC

INTERIM INJUNCTIONS- NATURE AND RATIONALE OF AN EX-PARTE ORDER

“The law is trite that an applicant for a non-permanent injunction may bring the application ex-parte without notice to the other side or with notice to the other side, as is appropriate. By their very nature, orders of injunctions granted on ex-parte applications, as in the present case, can only be properly interim in nature. The orders are made without notice to the other side in order to keep matters in status quo to a named date, usually a few days or until the Respondent is put on notice. The rationale of an order made ex-parte is that the delay to be caused by proceeding in the ordinary way by putting the other side on notice, might cause an irretrievable or serious damage or mischief. Such ex-parte orders of injunctions therefore are only for cases of real urgency” PER MOHAMMED JSC

ORDER OF INJUNCTION- WHEN AN ORDER OF INJUCTION IS GRANTED

“It is trite that an application for an order of injunction is usually granted pending the determination of the substantive suit, or the determination of an application pending before the court before which the application is made.” PER KEKERE-EKUN, JSC

ORDER – EFFECT OF AN ORDER MADE AGAINST A PERSON WHO WAS NOT A PARTY TO THE ACTION

“An order made against a person who was not a party to the action before the court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action.” PER KEKERE-EKUN, JSC

CRIMINAL PROCEEDINGS – WHO INSTITUTES CRIMINAL PROCEEDINGS IN THE MAGISTRATE COURT

“Customarily, initiation and prosecution of criminal proceedings before the Magistrates Courts is done by the Police pursuant to powers conferred on it by Section 23 of the Police Act. The powers are subject to Sections 160 and 174 (1) of the 1999 Constitution.” PER KEKERE-EKUN, JSC

CASES CITED

Akapo Vs Hakeem-Habeefa (1992) 7 SCNJ 119Amanabu Vs Okafor (1966) 1 ALL NLR 205 @ 207Anaeze V. Anyaso (1993) 5 NWLR (PT. 291) 1.Arubo V. Aiyeleru (1993) 3 NWLR (PT. 280) 126Ausustine Oyubu V Francis Akpobarojero (1998) 4 NWLR (PT. 545) 422Balosun V Amubikahun (1989) 3 NWLR (PT. 107) 18.Director SSS V Olisa Agbakoba (1999) 3 NWLR PT. 5951 314 AT 370Eronini V. Iheuko (1989) 2 NSCC (PT. 1) 503,513; (1989) 3 SC (PT. 1) 30.F.R.N. VS Adewunmi (2007) 10 NWLR (PT.1042) 399; (2007) 4 SC (PT.III) 30:F.R.N. VS Osahon (2006) 5 NWLR (PT.973) 361Green Vs Green (1987) 3 NWLR (60) 480Kale V. Coker (1952) 12 SC 252Kotoye VS C.B.N. (1989) 1 NWLR (PT.98) 419 @ 440 C – DMandilas & Karaberies Ltd V Apena (1.969) NMLR 199N.I.M.B. Ltd. VS U.B.N. Ltd. (2004) 12 NWLR (PT.888) 599NITEL Plc V Emmanuel O. Awalan (2003) 3 NWLR (PT. 733) 1Okoye Vs Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 7 SC (PT.III) (REPRINT) 33 (5) 56:Orji Vs Zaria Industries Ltd. (1992) 1 SCNJ 29Uku Vs Okumagba (1974) 1 ALL NLR (PT.L) 475Universal Trust Bank Ltd. & Ors. Vs Dolmetsch Pharmacy (Nig.) Ltd. (2007) 6 SC (PT.I) 1: (2007) 16 NWLR (PT.106) 520.University Of Lagos V. Olaniyan (1985) 16 NSCC (PT.1) 98, 113 Wimpey (Nig.) Ltd. Vs Balogun (1986) 3 NWLR (PT.28) 324 @ 331Witt & Busch Ltd. Vs Dale Power Systems Plc. (2007) 17 NWLR (PT.1062) 1: (2007) 5 – 6 SC 121

STATUTES REFERRED TO

The 1999 Constitution of the Federal Republic of Nigeria (as amended)Criminal Procedure Law of Bendel StateHigh Court (Civil Procedure) Rules, 1988 of Bendel State Applicable To Delta State

Legalpedia Citation: (2014-05) Legalpedia (SC) 40009

In the Supreme Court of Nigeria

Fri May 16, 2014

Suit Number: SC. 71/2004

CORAM

PARTIES

AREA(S) OF LAW

SUMMARY OF FACTS

HELD

ISSUES

RATIONES DECIDENDI

NON – JOINDER OF A PARTY- EFFECT OF NON – JOINDER OF A PARTY IN A SUIT

INTERIM OR INTERLOCUTORY INJUNCTION – EXERCISE OF DISCRETION OF COURT IN GRANTING AN ORDER OF INTERIM OR INTERLOCUTORY INJUNCTION

JURISDICTION OF THE HIGH COURT- JURISDICTION OF THE HIGH COURT IN GRANTING RELIEFS

CRIMINAL PROCEEDINGS – ON WHO RESIDES THE POWER TO INSTITUTE CRIMINAL PROCEEDINGS

RIGHT TO FREEDOM OF MOVEMENT- WHEN CAN THE RIGHT TO FREEDOM OF MOVEMENT BE CURTAILED BY A COURT

EXERCISE OF DISCRETION- INTERFERENCE BY AN APPELLATE COURT IN THE EXERCISE OF DISCRETION BY THE LOWER COURTS

INJUNCTION – POWER OF A COURT OF LAW TO GRANT AN INTERIM OR INTERLOCUTORY INJUNCTION

EXPARTE INTERIM INJUNCTIONS – PROCEDURE ADOPTED BY A COURT WHERE A PARTY SEEKS BOTH AN EX-PARTE INTERIM INJUNCTION AND AN INTERLOCUTORY INJUNCTION

DISCRETION- EXERCISE OF DISCRETION

INTERIM INJUNCTIONS- NATURE AND RATIONALE OF AN EX-PARTE ORDER

ORDER OF INJUNCTION- WHEN AN ORDER OF INJUCTION IS GRANTED

ORDER – EFFECT OF AN ORDER MADE AGAINST A PERSON WHO WAS NOT A PARTY TO THE ACTION

CRIMINAL PROCEEDINGS – WHO INSTITUTES CRIMINAL PROCEEDINGS IN THE MAGISTRATE COURT

CASES CITED

STATUTES REFERRED TO

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