CORAM

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PARTIES

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1. ORIGIN OIL AND GAS LIMITED2. MR. ABIODUN PONLE APPELLANTS

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1. NEPAL OIL AND GAS SERVICES LTD.2. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY (NIMASA)3. AQUITANE OIL AND GAS LIMITED4. UNION BANK OF NIGERIA PLC5. ZENITH BANK PLC RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The action was commenced at the Federal High Court sitting in Lagos, vide writ of summons and accompanying processes (statement of claim and other frontloaded processes), seeking for a declaration that by the Nigerian Maritime Administration and Safety Act 2007 (NIMASA Act) setting up the 2nd Respondent, the 2nd Respondent is not entitled to approve and/or facilitate the release of the petroleum product in the 3rd Respondent’s tank farm without the consent of the 1st Respondent as well as for an order directing the 3rd Respondent to release to the 1st Respondent 1.5 million litres of Automative Gas Oil (AGO), kept in its storage facility by the Appellants. There were also the alternative claim of N92,500,000, being the outstanding balance of N102,500,000 advanced by the 1st Respondent to the 1st Appellant for joint importation of the AGO product with 21% pre-judgment interest and 10% post-judgment interest per annum on the N92,500,000. The application for interlocutory injunction was heard on the merit upon which the court below granted the interlocutory injunction in excess of three (3) months after it had issued the ex parte injunction which the Appellant deemed excessive hence this appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether having regards to the reasons for the decision of the court below, the Learned Trial Judge has not prejudged the life issues in the substantive suit. Was the Learned Trial Judge not influenced by extraneous and irrelevant factors, other than the evidence before him and the applicable principles, in coming to his decisions? Did the Learned Trial Judge give any or careful consideration to the Appellants’ case presented before him before coming to its decisions, more particularly when he held that the allegations of self-induced urgency and fraudulent misrepresentation and concealment of facts had not been established by the Appellants? Is the order of Interlocutory Injunction granted by the court below not mareva in nature? And if No, did the Learned Trial Judge apply the applicable principles of law in coming to his decision? Does Exhibit A attached to the Plaintiff/ Respondent’s processes constitute legally admissible evidence upon which the Learned Trial Judge could have acted?

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RATIONES DECIDENDI

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GROUND OF APPEAL- WHETHER RAISING A PRELIMINARY OBJECTION IS THE APPROPRIATE METHOD OF GETTING RID OF A GROUND OF APPEAL

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“A preliminary objection to get rid of a ground of appeal or some grounds of appeal without disposing of the whole appeal as in this case should have been brought by motion on notice and argued in the respondent’s brief, not by notice of preliminary objection in the 1st respondent’s brief as was done in this case vide S.P.D.C.N. Ltd. v. Amadi (2011) 4 NWLR (pt.1266) 167 at 183, Okere v. James (2012) 16 NWLR (pt.1326) 339 at 348 – 349.” –

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GROUND OF APPEAL – WHETHER AN ERROR IN LAW AND A MISDIRECTION CAN BE COMBINED IN THE SAME GROUND OF APPEAL

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“It was held in Badau v. INEC (2008) All FWLR (pt.433) 1794 at 1817 following the Supreme Court decision in Hambe v. Hueza (2001) FWLR (pt.42) 1 at 6 that it is proper to combine an error in law and a misdirection in the same ground of appeal.” –

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RECORD OF COURT – PARTIES AND COURTS ARE BOUND BY THE RECORD OF COURT

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“The parties and the court are bound by the record of the court vide Wema Bank Plc v. Brastem-Sterr Nigeria Ltd. and Anor. (2011) 6 NWLR (pt.1242) 58 at 76, Offor v. State (2012) 18 NWLR (pt.1333) 421, Etim v. Obot (2010) 12 NWLR (pt.1207) 108, Leaders and Co. Ltd. v. Bamaiyi (2010) 18 NWLR (pt.1225) 329.” –

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JUDICIAL NOTICE – WHETHER COURTS CAN TAKE JUDICIAL NOTICE OF MATERIALS CONTAINED IN THE RECORD OF COURT

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“The court can take judicial notice of materials contained in the record of the court vide USI Enterprises Ltd. v. The Kogi State Government and Anor. (2005) 1 NWLR (pt.908) 494 at 517 – 518, Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (pt.1275) 30, Oji Ada and Ors. v. Ossai Uku and Ors. (1977) 5 F.C.A. 218.” –

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INTERIM INJUNCTION – RATIONALE IN FILING AN EXPARTE APPLICATION FOR INTERIM INJUNCTION

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“It is clear that at the time the motion ex parte for interim injunction was prepared and filed, the motion on notice for interlocutory injunction was also ready and filed. It follows that the motion on notice should have been served on the respondents in place of the motion ex parte. The rationale for it is that an ex parte application for interim injunction is only necessary if the interval between putting the opponent on notice is too short such that if the ex parte application is not filed and determined the res would be destroyed or exposed to irreparable damage. Once there is time to serve the motion on notice on the opponent, the ex parte application for interim injunction becomes otiose vide Animashaun and Ors. v. Bakare and Ors. (2010) 16 NWLR (pt.1220) 513.” –

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APPLICATION FOR EXPARTE ORDER OF INTERIM INJUNCTION – CONSIDERATIONS IN AN APPLICATION FOR EXPARTE ORDER OF INTERIM INJUNCTION

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“It has to be borne in mind that time-frame is one of the cardinal considerations in an application for ex parte order of interim injunction. Once there is enough time in between the accrual of the cause of action and the mischief sought to be restrained in the interim for the opponent to be put on notice of an application for temporary injunction the remedy of ex parte order of interim injunction is no longer available to the applicant.” –

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EX-PARTE INTERIM INJUNCTION – WHETHER TIME IS OF THE ESSENCE IN AN APPLICATION FOR THE REMEDY OF EX PARTE INTERIM INJUNCTION

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“It has to be emphasised that timeline is a critical and crucial factor in an application for the remedy of ex parte interim injunction. An applicant requesting for this extraordinary remedy must account for time by expressly stating in the affidavit evidence the exact dates of the events that led to the filing of the ex parte application.” –

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EX PARTE INJUNCTION –DUTY OF COURT WHERE A PARTY CONCEALS THE DATES RELEVANT TO THE APPLICATION FOR EXPARTE INJUNCTION

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“The 1st respondent did show utmost good faith when she suppressed or concealed the dates relevant to the application for ex parte injunction and thus kept the court below in the dark on how to gauge the count-down or time-scale for a grant or refusal of the ex parte application. Such conduct was enough for the court below to discharge or vacate the order of ex parte interim injunction vide the case of Animashaun and Ors v. Bakare and Ors. (2010) 16 NWLR (pt.1220) 513 at 541 following U.T.B. v. Dolmetsch Pharmacy (2007) 16 NWLR (pt.1061) 520 and the cases (supra) cited by the appellants.

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EXPARTE ORDER OF INJUNCTION – LIFE SPAN OF AN EXPARTE ORDER OF INJUNCTION

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“Order 26 rule 12(1) of the rules of the court below limits the life span of an ex parte order of injunction in these words –
“No order made on motion ex parte shall last for more than fourteen days after the party or person affected by the order has applied for the order to be varied or discharged or last for another fourteen days after application to vary or discharge it has been argued”.

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WRITING A JUDGMENT OR RULING – MODE OF WRITING A JUDGMENT OR RULING

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“The style of writing a ruling or judgment varies. It is not static or strait-jacketed. But a ruling like a judgment where evidence (oral or documentary (affidavit) evidence) is involved should in the least begin with an introduction of the parties and the nature of the action, the issue(s) in controversy, summary of the evidence, resolution of the issue(s) in controversy and the decision thereon with consequential order(s) if appropriate. The holding (supra) was not in so many words. The court below should have done better vide Mbanefo v. Molokwu and Ors. (2014) 6 NWLR (pt.1403) 377 at 417 following Duru v. Nwosu (1989) 4 NWLR (pt.113) 24 at 55.” –

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“PERUSE” – MEANING OF “PERUSE”

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“To “peruse” means to read something, especially in a careful way (Oxford Advanced Learner’s Dictionary 7th Edition 1086)”.

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ERROR IN JUDGMENT – WHETHER EVERY ERROR IN JUDGMENT WILL VITIATE THE JUDGMENT

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“It has to be stressed that not every error would vitiate the decision of a court. In this case the court below held that it perused all the processes filed by the parties before it arrived at its decision in the matter. Such solemn words of a Judge in its decision prima facie deserve weight vide Nwizuk and Ors. v. Eneyok and Ors. (1953) 14 WACA 354 at 355”.

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INTERLOCUTORY INJUNCTION – WHETHER INTERLOCUTORY INJUNCTION CAN BE GRANTED ON MERELY PECUNIARY CASES

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“By considering all the processes in question, the court below pre-empted the crux of the issues in controversy between the parties in the substantive action at the interlocutory stage of the case. The course open to the court below at that stage of the cross-roads was to grant only accelerated hearing of the case, jettisoning the application for an order of interlocutory injunction; more so the action was essentially pecuniary in nature which was ill-suited for the remedy of interlocutory injunction vide Wali and Ors. v. Amaefule and Ors. (2014) 12 NWLR (pt.1421) 299 following Orji v. Zaria Ind. Ltd. (1992) 1 NWLR (pt.216) 124, Missini v. Balogun (1968) N.S.C.C. (vol.5) 239 at 245 where it was held inter alia that it is not the normal practice to grant an interlocutory injunction if a merely pecuniary matter is at issue; because if damages in the measure recoverable in the substantive action would be adequate compensation and the defendant would be in a financial position to pay the damages, however strong the plaintiff’s claim appeared to be at the trial, no interlocutory injunction should normally be granted.

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INTERLOCUTORY INJUNCTION – WHETHER AN APPLICATION FOR THE GRANT OF INTERLOCUTORY INJUNCTION IS APPROPRIATE WHERE THE PRAYERS SOUGHT ARE ON THE NEED TO PROTECT THE RES AND PECUNIARY IN NATURE

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“The said prayers are majorly centered on the need to protect the res (AGO product) and monies from dissipation showing it was akin to an application for a mareva injunction which is normally granted if it appears that there is real danger that the defendant may dispose of the res of the litigation so as to defeat it before judgment, in which case the defendant is temporarily restrained or prevented from disposing of the assets or res vide Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. (1975) 2 Lloyd’s Report 509 (acronym Mareva), Sotuminu v. Ocean Steamship (Nig.) Ltd. (1992) 5 NWLR (pt.239) 1 at 25, Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (pt.722) 657, Efe Finance and Holdings Ltd. v. Osagie, Okeke and Otegbola and Co. (2000) 5 NWLR (pt.658) 536, A.I.C. Ltd. v. NNPC (2005) 11 NWLR (pt.937) 563 cited with approval and/or followed in Akingbola v. The Chairman, E.F.C.C. (2012) 9 NWLR (pt.1306) 475”.

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GRANT OF EXPARTE INJUNCTION – WHETHER SELF INDUCED URGENCY WILL WARRANT THE GRANT OF AN EXPARTE INJUNCTION

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“I only wish to underscore that the grant of exparte injunction cannot be grounded on self-induced urgency. In Kotoye vs CBN (1989)LPELR (1707)1 at 36, Nnaemeka, JSC stated as follows:
This self-induced urgency will not warrant the granting of the application ex parte, Megarry, J., as he then was, put the principle rather succinctly in the case of Bates v Lord Hailsham of Marylebone(1972 3ALL E.R. 1019, at p. 1025, where he stated:
An injunction is a serious matter, and must be treated seriously. If there is a plaintiff who has known about a proposal for ten weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight, he must have a most cogent explanation if he is to obtain his injunction on an ex parte application made two and a half hours before the meeting is due to begin. It is no answer to say, as counsel for the plaintiff sought to say, that the grant of an injunction will do the Defendants no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiff’s case are less, than compelling. Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion.’’
In his own contribution, Karibi-whyte, JSC opined at page 99:
The rationale for an ex parte application is the prevention of imminent irretrievable injury or damage to the right of one of the parties to the suit. Urgency is the necessary fulcrum on which the application rests. However, the basis of granting the application is also the existence of special circumstances and the urgency to protect the destruction of the right involved in the suit. Thus in the absence of a real urgency, the rationale for an ex parte application cannot be justified.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules, 2011|Federal High Court (Civil Procedure) rules 2009|Nigerian Maritime Administration and Safety Act 2007|

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