➥ CASE SUMMARY OF:
Chief Oyibo Agbomagbo & Anor. V. Chief Oloku Okpogo & Ors. (CA/B/147/2000, 5 May 2005)
by Branham Chima.
➥ ISSUES RAISED
Interim injunction;
Motion ex parte.
➥ CASE FACT/HISTORY
In the present appeal, the Appellants as the Plaintiffs, took out a writ of Summons against the five Original Defendants in this Suit on the 29 day of May, 1984, before the Delta State High Court, Warri, claiming declaratory and injunctive reliefs against the said five original Defendants.
On the 30th of May, 1984; the Appellants obtained an interim order of injunction against the Defendants restraining them from installing any person as the Odio-Ologbo of Ofagbe. On the 23/10/86, the Court upon the application to discharge the Order of Interim Injunction dismissed the application and in consequence, affirmed the interim order granted by it.
By a motion Ex-parte, dated the 28th day of January, 1999, the present 3rd defendant and Chief Matthew Ikpoku and Attorney General, Delta State, were joined in the suit as 7th and 8th Defendant’s respectively and further Orders of interim injunction made against them.
By a motion on notice, dated 9th day of February, 1999, which followed the motion Ex-parte, the Appellants claimed the following orders:- 1. Restraining the 7th Defendant herein from parading himself, claiming or holding himself out as a Odio-Ologbo of Ofagbe, pending the hearing and final determination of the Suit. 2. Restraining the 8th Defendant herein from recognising, holding out or granting a Staff of Office to and or, in any way dealing with the 7th Defendant as the Odio-Ologbo of Ofagbe, pending the hearing and final determination of the Suit. The motion was argued by the respective Counsel and in a considered ruling delivered as the 27th day of April, 1999, the trial Court refused the order for injunction sought and dismissed the application and discharged the order of interim injunction. This is what the trial Court held in dismissing the Appellant’s application:- “Having regard to the above, the court is of the view that the plaintiffs have been using the process of this court by way of motion exparte for interim injunction in warding off other opponents in the past, without vigorously pursuing the matter to its logical conclusion. Moreover, and more importantly, the plaintiffs by their showing in paragraph 11 of their affidavit in support of the motion papers had admitted that the 7th defendant had been installed the Odion-Ologbo of Ofagbe on 28/12/98. The grant of interlocutory injunction is no remedy to a completed action (See Anosike v. Gov. Imo/State (1987) 4 NWLR part 66 p. 663. On the whole, this application lacks merit and it must fail and it is hereby dismissed. The earlier order of this court, restraining the 7th defendant from parading himself as the Odio-Ologbo of Ofagbe is hereby rescinded. There will be cost of N500.00 for the 7th defendant for this application.”
It is against this ruling that, the Appellant’s have now appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the refusal to grant the interlocutory injunction was a proper exercise of judicial discretion?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE APPELLANT HAS BEEN USING THE COURT TO WARD OFF OPPONENTS VIA GETTING INTERIM INJUNCTION
‘In the instant case, the Appellant after obtaining the Order in May, 1984, did not make any move to file a motion on notice. The Defendants then sought to vacate or discharge the interim injunction vide a motion on notice. Their application was dismissed and instead, the Court reaffirmed the interim order made on the 30/5/84. That was vide a ruling of the Court, delivered on the 23rd of October, 1986. Again, the Appellants sequel to a motion Ex-parte dated the 28th January, 1999, joined the 3rd and 4th Respondents in Suit as 7th and 8th Defendant and also obtained injunctive Orders against them. Considering the facts and peculiar circumstance of this case, the learned trial judge, was right to have observed as he did in his Ruling that the Appellants have been using the process of this Court by way of motion ex parte for interim injunction in wording off other opponents in the past without vigorously pursuing the matter to its logical conclusion.”’
APPELLANT SHOWED NO INTEREST IN TAKING THE MATTER FURTHER
‘In the instant case, the learned trial judge was right to intervene to discharge the interim Order made in 1984, as the Appellant had shown no intention of taking the matter further, by moving from the stage of the Ex-parte order, rather, he wanted to preserve it.’
THE ORIGINAL SUIT HAS NO CLAIM AGAINST THE 3RD & 4TH RESPONDENTS FOR THE INTERIM INJUNCTION TO BE GRANTABLE
‘The injunction sought as contained in the writ of Summons is against the 1st Defendant in the suit and not the present 3rd and 4th Respondent against whom the injunction sought is directed. 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 and ORS v. ODUMERU and ORS (supra) at 159. From the Appellants writ of Summons and the amended statement of claim, there was no claim against the 3rd and 4th Respondents.’]
.
.
.
✓ DECISION:
‘ The Court is simply without jurisdiction to grant the interlocutory injunction sought because the Appellants writ of Summons and the further amended statement of claim do not disclose a claim against the 3rd and 4th Respondents, who were the Intended targets of the motion for interlocutory injunction. Based on the foregoing, it is my humble view that this appeal lacks merit and it is hereby dismissed. The costs is assessed and fixed at N3,500.00.’
➥ FURTHER DICTA:
⦿ INTERLOCUTORY INJUNCTION IS NOT GRANTED AS A MATTER OF COURSE
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. — U.M. Abba Aji JSC.
⦿ NATURE OF AN INTERIM INJUNCTION
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 v. CBN (1989) 1 NWLR (PT.98) 419. An injunction is a serious matter and must be treated seriously. See UNIBEZ (NIG) LTD v. CBCL LTD (2003) 6 NWLR (Pt.816) 402. It is a preservatory measure taken at an early stage in the proceedings. See AL CATEL KABEMETAL (NIG) PLC v. OJUEGBELE (2003) 2 NWLR (Pt. 805) 429. — U.M. Abba Aji JSC.
⦿ COURT SHOULD ENSURE THAT AN INTERIM ORDER IS NOT ALLOWED TO OVERSTAY
Courts must ensure that an ex-parte order of injunction is not allowed to over stay. Delay or in-action is not tolerated by the Court. Counsel to the party that obtained on interim order should move past haste to see that all that needs to be done is done in order not to make it look as if getting the exparte injunction was all that concerned him. Such Counsel must not lose sight of the fact that an extraordinary jurisdiction has been exercised in his clients favour, the purpose for which is to grant the Plaintiff’s a temporary very temporary relief. A few days, or perhaps until further order upon hearing of the motion on notice. But when a situation is created making the further order unlikely to come soon and for which the Plaintiff cannot avoid blame or being suspected, then the life of the Ex-parte Order of injunction is unduly prolonged. In such circumstances, the Court may be justified to intervene. — U.M. Abba Aji JSC.
⦿ JURISDICTION TO VACATE AN INTERIM ORDER IS ALWAYS VESTED IN THE COURT THAT MADE IT
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 v. C.B.N. (supra) at 688. The learned trial judge was therefore, right to intervene and his observation cannot be said to be perverse in the circumstances of the case. — U.M. Abba Aji JSC.
⦿ FOR AN INTERIM INJUNCTION TO BE RIGHTLY ORDERED, SAME ORDER MUST BE GRANTABLE UPON CONCLUSION OF THE CASE
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. 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. In the instant, case, the Appellant’s writ of Summons and the statement of claim do not contain the name of the 3rd and 4th Respondents as persons joined in the Suit, there is therefore, nothing before the Court in respect of which the Court can exercise its discretion over the 3rd and 4th Respondents. — U.M. Abba Aji JSC.
⦿ FOR AN INTERLOCUTORY INJUNCTION TO BE GRANTED IT HAS TO BE PREMISED ON THERE BEING AN 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 mayor may not include a final injunction. See DAEWOO (NIG) LTD v. HAZCON (NIG) LTD (1998) 7 NWLR (Pt. 558) 438 at 448-449. — U.M. Abba Aji JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
U.M. Abba Aji, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
T.R. Ikpotor Esq.
⦿ FOR THE RESPONDENT(S)
I. Ovwighorienta Esq., 1st – 3rd Respondents;
Prof. A.A. Utuama, A.G. Delta State, 4th Respondent;
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
