➥ CASE SUMMARY OF:
Hon. Emma Molokwu & Ors V. Pastor John Iron Obiudu & Ors. (CA/E/147/2013 • 27 Mar 2014)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Interlocutory injunction;
Balance of convenience.
➥ CASE FACT/HISTORY
The respondents as plaintiffs filed a suit at the High Court of Justice, Otuocha, Anambra State claiming as per their statement of claim jointly and severally against the appellants as defendants the following reliefs:- (a) A Declaration that the term of office of the defendants as Executive Officers and members of the Executive Committee of Enugwu Community Union elapsed in February 2010. (b) A Declaration that the defendants as from the date of expiration of their term of office lack the authority to operate or withdraw money from the Union’s Bank Account. (c) A Declaration that all actions taken by the defendants either jointly or severally as executive officers of the Union after the expiration of their term of office are null and void. (d) An order directing the defendants to return to the Union all money withdrawn from the Union’s bank account or any other money in the Union’s coffers, expended by the defendants after the date of expiration of their term of office. (e) An order directing the defendants to return to the Union the minute book and all other document/property of the Union in their possession. (f) An order of injunction restraining the defendants jointly and severally from parading themselves as executive officers of Enugwu Community Union.
The plaintiffs/respondents filed a motion on notice along with the writ of summons dated 4th day of October, 2012. By a motion on notice dated and filed 4th day of October 2012, the plaintiffs/respondents sought for the following: – (a) An order of Interlocutory Injunction restraining the defendants jointly and severally from presenting, representing and or parading themselves as executive officers and members of the Executive Committee of Enugwu Community Union pending the determination of this suit. (b) An order of Interlocutory Injunction restraining the defendants jointly and severally from withdrawing money and or operating in any manner howsoever the account of Enugwu Community Union at Diamond Bank Plc. pending the determination of this suit. (c) Such further order or orders as the Honourable court may deem fit to make in the circumstances. The motion is supported by a 17 paragraph affidavit. The appellants as defendants at the lower court filed a counter-affidavit dated 12th day of November, 2012, opposing the motion on notice seeking for interlocutory injunction. Plaintiffs/Respondents filed a further affidavit on the 19th day of November, 2012. I wish to also note that defendants now appellants filed their statement of defence on the 15ft day of November, 2012. Written addresses were filed and the motion on notice was heard on the 3rd day of February, 2013. In a considered ruling delivered on 21-02-2013 the learned trial judge granted an order of interlocutory injunction.
Dissatisfied with the said order of interlocutory injunction, defendants/appellants lodged this appeal vide Notice of Appeal dated and filed on 21-02-2013.
➥ ISSUE(S)
I. Whether the learned trial judge was right to have granted the order of Respondents interlocutory injunction, when the reliefs sought on the motion paper were one and the same as, the relief claimed in the substantive suit.
II. Whether the trial judge was right to have granted the reliefs sought by the respondents in their motion paper when they failed to satisfy the legal requirement for the grant of an interlocutory injunction.
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE INTERLOCUTORY INJUNCTION DOES NOT SEEK FOR DECLARATION OF RIGHT AS IN THE SUBSTANTIVE SUIT
‘Issue one poses the question whether the learned trial judge was right to have granted the order of interlocutory injunction when the reliefs sought on the motion paper are one and the same as the relief claimed in the substantive suit. I have considered the submissions of both counsel on this issue and the authorities cited. There is no dispute as to the fact that reliefs (a) and (b) set out on the face of the motion paper and paragraphs (a), (b) (c) (d) and (f) of the statement of claim, filed on 4-10-2013 are related. However, as rightly submitted by respondents’ counsel, the reliefs sought in the motion for interlocutory injunction does not seek for a decision by the court on the right of the parties but is clearly intended to keep things in status quo until the rights of the parties are determined by the court at the end of the case. The reliefs sought in the substantive suit if granted will finally determine the right and status of the parties with respect to the subject matter of the suit. In other words, the order of interlocutory injunction are exfacie temporary in nature. While the relief sought in the statement of claim are of a permanent nature.’
‘Having regard to the facts and circumstances of this case, I do not subscribe to the argument of appellants’ counsel that granting the reliefs sought amount to determining the substantive suit. The case of Victory Merchant Bank v. Peifaco Ltd. (supra) relied upon by counsel is supportive of respondent’s case than the appellants. As earlier stated, the granting of interlocutory injunction involves an exercise of discretionary power. It is apparent from the record that the learned trial judge did exercised caution while considering the application. Every case has to be considered according to its given set of facts and circumstances. I will accordingly resolve issue one in favour of the respondents.’]
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[‘It is therefore apparent from the affidavit in support, the counter-affidavits as well as the various exhibits attached to the said affidavit, that the facts deposed therein are conflicting. This supports the fact that there is a serious question to be tried. At this stage of the application, it is not open to the learned trial judge to resolve conflicts of evidence on merit by determining arguments advanced in respect of same. The complaint of the appellants that the trial judge did not consider the exhibits attached to the counter-affidavits cannot hold water. It is trite that in the determination of interlocutory application, the trial court must refrain from touching or making pronouncements on the substance or merit of the suit. See Societe General Bank (Nig.) Ltd v. Braimoh (1991) 1 NWLR (Pt.168) 428 at 436, Itseghosimbe v. Ogbeta (2001) 13 NWLR (Pt.729) 26, 36. The learned trial judge did not make any comment or observation in the ruling that may in effect, predetermine the substantive and main issues in the suit. The learned trial judge declined to consider Exhibit ‘A’ the constitution of the Union to avoid making pronouncements on the substance or merit of the suit.’
THE BALANCE OF CONVENIENCE IS IN FAVOUR OF THE RESPONDENT
‘In the case at hand, the learned trial judge did consider, and weigh the balance of convenience in the imaginary scale of justice to see where the pendulum tilts and came to the conclusion that the balance of convenience is in favour of the plaintiffs/respondents. The learned trial judge at page 111 of the record pronounced thus: “This court cannot conceive the adequacy of any payment of damages or compensation to the plaintiff’s by the defendants, no matter how high the quantum thereof, in respect of the injury the plaintiff’s would sustain if the injunction is refused and they should ultimately turn out to be right. Therefore, this is a proper case for the grant of interlocutory injunction as prayed for by the plaintiffs.”’
‘Having regard to the facts and circumstances of this case, I am of the humble view, that the learned trial judge has exercised his judicial discretion bonafide. To interfere with the orders contained in the ruling of 21st February, 2012 is to fetter that discretionary power of the learned trial judge. See Nigerian Arab Bank Ltd v. Ogueri (1990) 6 NWLR (Pt.159) 751.’]
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.
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✓ DECISION:
‘In the light of the foregoing, the appellants two issues for determination are therefore resolved against them. The appeal is without merit and it is hereby dismissed. The ruling of the trial court delivered on the 21st day of February, 2012 by Amaechina, J. is hereby affirmed. Parties to bear their own costs.’
➥ FURTHER DICTA:
⦿ FACTORS TO BE CONSIDERED FOR GRANT OF INTERLOCUTORY INJUNCTION
The important issues the courts usually consider before deciding whether or not to issue an order of interlocutory injunction are as follows:- 1. Is there a serious issue to be tried? 2. Are damages an adequate remedy? 3. Where does the balance of convenience lie? 4. Are there special factors? — A. G. Mshelia JCA.
⦿ BALANCE OF CONVENIENCE IN THE GRANT OF INTERLOCUTORY APPLICATION
What is meant by balance of convenience is the disadvantage to one or the other side which damages cannot compensate. The applicant must prove that the balance of convenience is on his side. As stated by Nnaemeka-Agu JSC in Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419. “It means that more justice will result in granting the application than in refusing it.” Put it another way, the two questions to be posed by the court are: Will the applicant suffer more inconvenience if the application is not granted? Or will the defendant suffer more inconvenience if the injunction is granted? Perhaps the meaning of balance of convenience cannot be better put than the definition given to it in the case of A.C.B. v. Awogboro (supra) Tobi JCA (as he then was):- “The balance of convenience (the opposite of inconvenience) between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurement of the scales of justice to see where the pendulum tilts. While the law does not require mathematical, it is the intention of the law that the pendulum should really tilt in favour of the applicant.” The balance of convenience between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurements of the scale of justice to where the pendulum tilts. In other words, the advantages of granting the injunction will outweigh the disadvantages which are really the odds. — A. G. Mshelia JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Adzira Gana Mshelia, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
