IKONNE & ORS v NWACHUKWU & ORS

IKONNE & ORS v NWACHUKWU & ORS


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 12TH MAY, 2017


Appeal No: CA/PH/350M/2008
CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

H.R.H. EZE ISAAC AJONU IKONNE
CHIMAROKE IKONNE
AHUKANNA IKONNE
FRIDAY IKONNE

(APPELLANTS)

AND

CHIEF ELDER MACLORD NWACHUKWU

CHIMAOBI EHIEMERE (SECRETARY OSUSU ABA VILLAGE COUNCIL)

G. U. AGUWA – RESPONDENT(S) (FOR THEMSELVES AND A REPRESENTING OSUSU ABA VILLAGE, ABA NORTH LOCAL GOVERNMENT AREA ABIA STATE).

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Statute Barred Action – Steps to determine whether an action is statute barred
How to determine whether an action is statute barred

“It is elementary law, that in determining whether or not an action is statute barred, the proper document to be examined is the Plaintiff’s statement of claim and not statement of defence or any other document. Thus, I agree with the contention of the learned counsel for the respondents, that the respondents’ suit cannot be held at least at this point in time, to be statute barred based on the appellants’ affidavit in support of their motion on notice to set aside the interim order.” Per OREDOLA, JCA read in context

2. Parties to an Action – Exceptions to the general rule that the same person cannot be both a plaintiff and a defendant in the same action

The general rule that the same person cannot be both a plaintiff and a defendant in the same action; exceptions thereto

“As a general rule, it is trite that a party cannot be a plaintiff and defendant in a suit simultaneously. This is because it defies reason for a party to enforce a judgment against himself. Conversely, it will be logically and legally absurd to allow a party to institute a suit against himself.

Allowing the occurrence of such a scenario, would not only result in abuse of Court process but ridicule the Court process itself in the eyes of ordinary men. However, this legal principle like every principle admit of some exceptions. One of such exception has been enunciated upon by the Supreme Court, Per Ayoola, JSC, in the case of Okeahialam & Anor. V. Nwamara & Ors. (2003) 12 NWLR (Pt. 835) 597; (2003) LPELR – 2429, 13 -14 wherein His Lordship held with erudition and I quote:

“The general rule is that the same person cannot be both a plaintiff and a defendant in the same action. However, in my opinion, that general rule, strictly understood, is only applicable to parties actually before the Court. The distinction between the parties named in the proceedings and the person represented in the proceedings is always present. In representative processings, for instance, a person represented in but not a party to the proceedings cannot have the judgment in the representative proceedings enforced against him without leave, whereas it would have been so enforceable against the defendant or defendants actually before the Court. The common sense approach adopted in the judgment of the Court below quoted above is to be preferred to a tight adherence to a rule which is more applicable to cases in which the same person is named as a party, even if in different capacities, as both the plaintiff and the defendant. I am of the same view as the Court below that in a representative action the person who named himself as a Plaintiff suing the defendant in a representative capacity must be deemed to have excluded himself from the class represented by the representative defendant. It defies reason to argue that a person who has sued a defendant as representing an association to which he belongs for wrongfully acting against his interest must be deemed to be represented as a defendant by the named defendant merely because he did not expressly state that he had exempted himself, just as it would have defied reason to presume that he had alleged a wrong committed by himself against himself”.

I have carefully reviewed the case of Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & Ors. (1987) 2 NWLR (Pt. 58) 587 relied upon by the learned counsel for the appellants. The facts of the said case are neither on all fours with the instant appeal nor issues decided therein related to this appeal. Thus, the case is not applicable to this appeal. In this vein, I totally agree with the learned trial judge, that this suit was properly constituted with regard to the parties. That is, the fact that appellants are themselves members of the community which the respondents are representing in this case, does not render the action as being improperly constituted, as the appellants are by law deemed to have been excluded from the class of persons the respondents are representing due to their conflicting or adverse interests.” Per OREDOLA, JCA read in context

3. Issues for Determination – Effect of raising an issue improperly before the Court

***Whether Court can entertain an issue not properly placed before it

“I agree with the submission of the learned counsel for the respondents, that the issue of limitation law or statute of limitation was not properly raised before this Court. The grounds upon which the appellants challenged the interim order of injunction are as follows:

“(1) The Order of Interim Injunction was obtained based on distorted and misrepresented facts and misstatements deliberately presented to the Court by the Plaintiff.

(2) The Plaintiffs suit as presently constituted is incompetent, an abuse of Court process consequently depriving this Honourable Court of the jurisdiction to entertain same”.

(See page 17 of the record of appeal.)

In addition, the appellants’ grounds of appeal or issues for determination cannot by whatever leverage be extended to cover Limitation Law. It is the correct position of law, as the learned counsel for the appellants contended in their reply brief, that an objection based on limitation law goes to the root or jurisdiction of the Court, thus, it can be raised at any stage of the proceedings even for the first time at the Apex Court. Nevertheless, the issue must be properly raised. In the instant case, the issue was introduced by the appellants in the course of arguments in respect of their Issue No. 2. What is more, the said issue is mainly on the appellants’ allegation, that the learned trial judge wrongly delved into substantive issues. The appellants did not make the objection by means of the action being statute barred as a ground for challenging the interim order or one of the grounds of appeal. Also, they did not file a motion on notice in respect thereof. Thus, I agree with the learned counsel for the respondents, that the issue which pertained to the limitation law was not properly raised before this Court. Thus, all arguments in respect thereof are completely discountenanced.” Per OREDOLA, JCA read in context

C. REMEDIES
4. Interim Injunction – Purpose of granting an interim order

Purpose/object of granting an order of interim injunction

“It is trite law that an exparte interim order is mainly granted to forestall an irreparable loss or damage that may otherwise be suffered by an applicant, if he were to follow the bureaucratic process of a motion on notice. Thus, an interim order is granted to protect and preserve the subject matter of the suit pending the determination of the similar motion on notice or further direction by the Court. Indeed, it goes without saying that the underlying purpose for granting an interim order is to maintain the status quo of the subject matter of a suit. As the learned counsel for the appellants has observed, an interim order or injunction is not usually granted ad infinitum, they are time bound or made to be specific, depending on the circumstances of the case. See7-Up Bottling Co. Ltd. V. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (Pt. 383) 257; (1995) 3 SCNJ, 37 and Standard Chartered Bank Nigeria Ltd. V. Dr. Tunji Braithwaite (2013) LPELR-20814.” Per OREDOLA, JCA read in context

5. Interim Injunction – Whether an interim injunction should be made ad infinitum or properly tenured
Whether an interim injunction should be properly tenured

“It should be emphasized and reiterated, that the purpose of the interim injunction is to protect that res which forms the subject matter of the suit. Thus, I agree with the learned counsel for the respondents, that it would not only make nonsense of the purpose of the interim order or accord with the intention of the makers of the rules of Courts, if the interim order of injunction as in this case automatically lapses after 14 days from the day it was granted. I also share the view and argument that an interim injunction should not be made ad infinitum, it should be properly tenured. However, every case should be taken and or treated within its peculiar circumstances. In the instant case, the learned trial judge clearly, properly and purposefully considered the circumstances which led to the grant of the interim order of injunction, and observed that the order was granted by the vacation judge to whom this suit was initially assigned. The learned trial judge did no less than re-affirming the interim order and sustaining the same pending further directive, after finding that the appellants have failed to establish that the respondents suppressed material facts which are necessary to persuade the lower Court to set aside the interim order.” Per OREDOLA, JCA. read in context

6. Interim Injunction – Effect of failure of the Court to extract an undertaking as to damages

Whether failure of the Court to extract an undertaking as to damages in an application for injunction would make the interim order liable to be set aside

“On the issue of undertaking, the learned counsel for the appellants contended that failure of the lower Court to extract an undertaking as to damages from the respondents has made the interim order liable to be set aside. He placed heavy reliance on the case of Kotoye v. Central Bank of Nigeria (supra). As I have earlier observed, each case is decided on the strength of its own peculiar facts or given circumstances, and no authority should be blindly applied without considering the peculiar circumstances of the present case. In the case of Kotoye v. Central Bank of Nigeria (supra), the applicant therein did not give an undertaking in their affidavit support to pay damages; whereas in the instant case, the respondents copiously undertook to pay the damages. See pages 11 and 12 of the record of appeal. Thus, the respondents have fulfilled all they need to do with respect to the interim injunction, and thereby shifted the exercise of discretionary power of assessing and making pronouncement as to the amount to be undertaken to the Court. The respondents having done all they need to do under the law, should not be held liable for the inadvertence or omission on the part of the trial Court in this regard. Furthermore, in the said Kotoye’s case, the Apex Court observed, that there are some exceptions (though the Apex Court was silent on the said exceptions), to the rule that failure to extract an undertaking from the applicant for an injunction could or would vitiate the injunctive order. This present situation appears to me to qualify as one of such exceptions.

Therefore, I am of the firm viewpoint that the order varying the interim order of injunction was proper and in accordance with the law. In addition, I am also of the deep rooted stand point that the failure of the lower Court to pronounce on or make an order as to the amount the respondents are to undertake as damages in case the interim order of injunction was found to be improperly sought and obtained, did not vitiate the order as the respondents cannot be punished for the inadvertence or omission on the part of the Court.” Per OREDOLA, JCA read in context

D. PRACTICE AND PROCEDURE
7. Interlocutory Applications –

Whether a finding of Court made at an interlocutory stage of a substantive matter would make the order granted void or liable to be set aside

“Furthermore, I agree with the submission of the learned counsel for respondents that even if the learned trial Court delved into the substantive issue and made a finding on the same at an interlocutory stage, it does not ipso facto make the order granted void or liable to be set aside, provided the order was properly made. The party affected by the said order, if they feel that their case has been compromised or prejudiced by the said finding are at liberty to apply, that the suit be transferred to another judge in the same jurisdiction. See the case of Nigerian Gas Co. Ltd v. Onwubuya (1998) 10 NWLR (Pt. 569) 322.” Per OREDOLA, JCA read in context


LEAD JUDGMENT DELIVERED BY OREDOLA, JCA


This is an interlocutory appeal against the ruling of the High Court of Abia State of Nigeria sitting at Aba (hereinafter referred to as the lower Court), delivered on the 2nd day of May, 2008 by Hon. Justice Ory Zik Ikeorha, J. The suit from which this appeal emanated from was commenced by the plaintiffs/respondents (hereinafter referred to as the respondents) vide a writ of summons, dated the 7th day of August, 2007, wherein the respondents sought for the following reliefs:

“1. A DECLARATION that the piece or parcel of land situate at and traditionally called “IHUALA Osusu” or “IHUALA – AGBARA” (i.e. the abode of the ancestral shrine of Osusu Aba people) in Osusu Aba Village, Aba North Local Government Area, Abia State is the absolute communal property of Osusu Aba people represented by the Plaintiffs.

2. A DECLARATION that the said land being the abode of the traditional/ancestral shrine of Osusu Aba People same cannot be forcibly or otherwise acquired, alienated, sold, purchased, bought or trespassed entered into by the Defendants or any other person whomsoever claiming through him for any other purpose whatsoever.

3. A DECLARATION that the Plaintiffs are entitled to the statutory right of occupancy over the said land.

4. THE SUM OF N100, 000,000.00 (ONE HUNDRED MILLION NAIRA) only being General and Special Damages for the Defendant’s unlawful trespass into the said land and desecrating Plaintiffs shrine since Monday the 6th day of August, 2007 by brushing the land, digging trenches thereon (with view to burying) and or brushing/installing some underground fuel tanks for purposes of establishing a Filing Station or other commercial purposes thereon and which trespass is still continuing to this day.

5. PERPETUAL INJUNCTION restraining the Defendants, their servants, agents, sons, heirs, privies or any person whatsoever claiming through them from wasting, damaging, or converting the said land into a Petrol Filling State (sic) or alienating the said land to any person whomsoever”.

The writ of summons was accompanied by a motion exparte and motion on notice seeking in the main to restrain “the Defendants/Respondents, their agents, servants, privies, workmen from damaging, wasting, alienating and changing the character of or converting into a Petrol Filling Station or other venture, the communal piece or parcel of land situate at No. 91 Faulks Road, Aba and known as “IHUALA OSUSU” or “IHUALA-AGARA” being the abode of (or housing) the traditional/ancestral shrine of Osusu Aba people and in Osusu Village Aba North Local Government Area Abia State pending determination” of the motion on notice. The exparte motion was supported by a 28 paragraph affidavit, an exhibit and written address; while the motion on notice was supported by a 25 paragraph affidavit, an exhibit and written address. After due consideration of the exparte application together with exhibit in support thereof, the lower Court granted the respondents’ relief as prayed.

Consequent upon the grant of the said application, the defendants/appellants (hereinafter referred to as the appellants) brought a motion on notice dated the 20th day of August, 2007 and filed on the 23rd day of August, 2007 wherein they sought for the following reliefs:

“(a) AN ORDER discharging, setting aside or varying the ORDER OF INTERIM INJUNCTION made by this Honourable Court in this suit on the 13th day of August, 2007 but served on the 1st Defendant on Thursday, the 16th day of August, 2007 by a Bailiff of this Honourable Court.

(b) AN ORDER striking out this suit for being improperly constituted, incompetent, an abuse of Court process and for the consequent lack of jurisdiction of this Honourable Court to entertain same”.

The aforesaid motion on notice was supported by a five paragraph (with 23 sub-paragraphs) affidavit, exhibit and a written address. The respondents did not file any counter-affidavit against the motion, however, they filed a written address. Again, upon the giving of due consideration to the processes placed before him, the learned trial judge dismissed the appellants’ application and further extended the life span of the interim order beyond the normal 14 days, somewhat indefinitely pending the further direction of the Court in respect thereof.

The appellants were dissatisfied with the said ruling of the lower Court and appealed against the same vide a notice of appeal dated the 9th day of May, 2008. It was filed on the 12th day of May, 2008. The appellants vexes against the said ruling were based on three (3) grounds of appeal.

In accordance and compliance with the rules of this Court, the parties filed their respective briefs of argument. The appellants’ brief of argument was prepared by K. C. Nwufo Esq. The said appellants’ brief dated the 26th day of April, 2012, was filed on the 27th day of April, 2012. The said brief of argument was by order of this Court deemed as properly filed and served on the 21st day of April, 2015. The appellants’ reply brief dated the 9th day of February, 2017 was filed on the 10th day of February, 2017. On the other side of the divide, the respondents’ brief of argument dated the 20th day of November, 2014 was filed on the 24th day of Noverber,2014. The said respondents’ brief was prepared by C. C. Elele sq.

Towards the determination of this appeal, the appellants formulated three (3) issues. The issues are as follows:

“(a) Whether it was legally proper for the Learned Trial Judge to have extended the life span or tenure of the Order of interim injunction made Ex-parte to an indefinite period? (Ground Three)

(b) Whether it was proper for the Learned Trial Judge to delve into the issue for determination in the substantive suit and thereby prejudging the suit? (Ground Two)

(c) Whether the Learned Trial Judge was right when he refused to strike out the suit that was improperly constituted as to the class of persons on whose behalf the plaintiff initiated the suit on a representative capacity? (Ground one)

On their own part, the respondents also formulated three

(3) issues for the determination of this appeal. The issues are as follows:

“1. Whether having regard to the admissions made by the Appellants in their supporting affidavit (as to the ownership, status and state of the land in dispute), the learned trial Judge was not right in the exercise of her discretion to have declined to discharge or set aside the interim order of injunction, and instead, varied the order by extending its lifespan, pending further directive by Court and equally ordered an accelerated hearing of the suit (Ground 3)

2. Whether in the peculiar circumstance of the facts of this case, the learned trial Judge prejudged or predetermined the merits of the substantive suit at the interlocutory stage of her ruling on Appellants motion for discharge of the interim injunction; and if so what is the consequence and or proper order to be made by this Court (Ground 2)

3. Whether this action is improperly constituted by mere fact that the Plaintiffs/Respondents did not state on the face of the Writ of Summons that the Defendants/Applicants were excluded amongst the class of persons represented in the suit (Ground 1).”

Having considered the set of issues formulated by the learned counsel for the parties respectively, I found them materially the same, save for the variation in the use of words. However, the set of issues formulated by the appellants are adequate and apt, thus same is hereby adopted in the determination of this appeal.

ISSUE 1

The learned counsel for the appellants, contended that by virtue of Order 8 Rule 10 of the Abia State High Court (Civil procedure) Rules, 2001 an exparte order must not last beyond fourteen (14) days after the party affected by the order has applied for it to be discharged or varied whether or not the application is meritorious. The learned counsel also argued that the exparte order is also in law deemed to have been automatically discharged after 14 days from the day it was made, whether or not the affected party applied for it to be set aside or varied. In addition, it is the contention of the learned counsel for the appellants, that an order for interim injunction can only be made for a specified period or pending the determination of the motion on notice for the interlocutory injunction. Thus, he submitted that the lower Court acted wrongly by extending the tenure of the interim order of injunction indefinitely. He referred us to the cases of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 41 ; Orji v. Zara Ltd (1992) 1 NWLR (Pt. 216) 124 and Okechukwu v. Okechukwu (1989) 3 NWLR (Pt. 108) 234 among others. The learned counsel further argued that the respondents secured the interim order from the lower Court on the basis misrepresented facts and concealment of material facts. The learned counsel therefore, submitted that the respondents, “did not act in utmost good faith with the Court when they brought the Application for interim injunction and your Lordships are respectfully urged to discharge the same and allow this Appeal”.

Again, the learned counsel for the appellants contended that there was no real urgency in respect of the land in dispute in the first place to justify the interim injunction and the failure of the lower Court to secure an undertaking for damages from the respondents, has rendered the interim injunction void. He relied on the cases of 7-Up Bottling Co. Ltd. & 2 Ors. V. Abiola & Sons Nig. Ltd. (1995) 3 SCNJ, 37 and Afro-Continental Nig. Ltd. V. Ayantuyi & 8 Ors. (1995) 12 SCNJ, 1.

Furthermore, in the appellant’s reply brief, the learned counsel for the appellants, argued that the authorities relied upon by the learned counsel for the respondents in contending that the lower Court was right to have extended the tenure of the interim injunction and the respondents’ contention that the failure to extract an undertaking from the respondents before the injunction was given does not render the order invalid, are no longer good law in the light of more recent authorities and majority of the cases cited by the respondents’ counsel are not on all fours with the present case, thus, they are not applicable to the instant case. Also, the learned counsel argued that the respondents’ contention that the failure of the appellants to “challenge the finding of the learned trial judge that there was no misstatements or misrepresentation of facts was fatal to the appellants who were allegedly bound by the said ruling is not correct.” The learned counsel further argued that it is not every comment made by a judge that should be challenged, and that the appellants having appealed against the refusal of the learned trial Judge to discharge the said interim injunction amounts to sufficient challenge on all the findings of the learned trial judge in respect of the interim order. He referred us to the cases of Chief F. S. Yesufu & Anor. V. Kupper International N. V. (1996) 3 -4, Monthly Appeal cases 31 and Bogban V. Diwhre (2005) ALL FWLR (Pt. 281) 1724 @ 1739.

In reply, the learned counsel for the respondents contended that the argument of the learned appellants’ counsel that an interim injunction automatically lapses after a total of fourteen (14) days whether or not the affected party applies for its variation or for it to be set aside was not supported by any judicial authority and should be discountenanced. The learned counsel argued, that the lower Court has the power and or jurisdiction to extend the tenure of the interim order as it has done in order to protect the subject matter of the case. He relied heavily on the case of Nigerian Ports Authority Superannuation Fund v. Fasel Service Ltd. (2002) ALL FWLR (Pt. 97) 719. The learned counsel further argued that one of the basic conditions required to set aside an order of the Court, is deliberate concealment of material facts by the applicant. He referred us to the cases of Akuma Industries Ltd. V. Ayman Enterprises Ltd (1999) 13 NWLR (Pt. 633) 68 and Josien Holdings Ltd. & 3 Ors. v. Lornamead Ltd (1995) 1 NWLR (Pt.371) 254 among others. According to the learned counsel for the respondents, the appellants have failed to establish that the respondents suppressed substantial and material facts in securing the lower Court’s interim injunction, thus they are not entitled to the reliefs which they sought thereat. He referred us to the case of Akuma Industries Ltd V. Ayman Enterprise Ltd (supra).

In addition, the learned counsel for the respondents, submitted that “it is now settled that a refusal by the learned trial Judge to discharge an order of interim injunction amounts to a confirmation of the interim order of injunction earlier granted (or sought to be discharged) and such order remains in force and binding until it is vacated”. He referred us to the case of Odutola v. Lawal (2002) 1 NWLR (PT.749) 633 @671.

On the issue of undertaking, the learned counsel for the respondents submitted, “that once in application for injunction, an applicant gives an undertaking, to pay damages in the affidavit in support of his motion, this will be a sufficient undertaking, whether or not the trial Court formally extracted an undertaking to that effect.” He relied heavily on the case of Onyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) 315 and Afro-Continental Ltd. V. Ayantuyi (supra). The learned counsel thereby urged this Court “to hold that the learned trial Judge was right in the peculiar circumstances of this case in refusing to accede to Defendants/Appellants application to discharge the order of interim injunction and to have extended the lifespan thereof and ordered an accelerated hearing of the substantive suit”. We were then urged, to resolve this issue in favour of the respondents.

It is trite law that an exparte interim order is mainly granted to forestall an irreparable loss or damage that may otherwise be suffered by an applicant, if he were to follow the bureaucratic process of a motion on notice. Thus, an interim order is granted to protect and preserve the subject matter of the suit pending the determination of the similar motion on notice or further direction by the Court. Indeed, it goes without saying that the underlying purpose for granting an interim order is to maintain the status quo of the subject matter of a suit. As the learned counsel for the appellants has observed, an interim order or injunction is not usually granted ad infinitum, they are time bound or made to be specific, depending on the circumstances of the case. See7-Up Bottling Co. Ltd. V. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (Pt. 383) 257; (1995) 3 SCNJ, 37 and Standard Chartered Bank Nigeria Ltd. V. Dr. Tunji Braithwaite (2013) LPELR-20814.

In the instant case the interim order was initially granted, pending the determination of the motion on motion. (See page 14 of the record of appeal.) The lower Court only acknowledged the subsistence of the interim order as the application regarding the interlocutory injunction has not been taken. The learned trial judge further advised the parties to intensify efforts towards the substantive suit, than focusing more attention on the interlocutory applications. For purpose of clarity, the portion of the lower Court’s ruling in respect of the above is reproduced below:

“The Honourable Court however hereby makes an order varying the earlier order of interim injunction. It is thus ordered that the order subsists pending any further directive of the Honourable Court in that respect. Since again, the relief sought in the interlocutory application is the same as that of the interim application, the Honourable Court hereby directs both parties to galvanise their efforts in preparing for the substantive suit; rather than waste more time arguing the interlocutory injunction.”

(See page 69 of the record of appeal.)

It should be emphasized and reiterated, that the purpose of the interim injunction is to protect that res which forms the subject matter of the suit. Thus, I agree with the learned counsel for the respondents, that it would not only make nonsense of the purpose of the interim order or accord with the intention of the makers of the rules of Courts, if the interim order of injunction as in this case automatically lapses after 14 days from the day it was granted. I also share the view and argument that an interim injunction should not be made ad infinitum, it should be properly tenured. However, every case should be taken and or treated within its peculiar circumstances. In the instant case, the learned trial judge clearly, properly and purposefully considered the circumstances which led to the grant of the interim order of injunction, and observed that the order was granted by the vacation judge to whom this suit was initially assigned. The learned trial judge did no less than re-affirming the interim order and sustaining the same pending further directive, after finding that the appellants have failed to establish that the respondents suppressed material facts which are necessary to persuade the lower Court to set aside the interim order.

Again, I have examined some of the cases relied upon by the learned counsel for the appellants in support of his contention that interim order is a temporary order and automatically lapses after 14 days; particularly the cases of; Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt.98) 419 and Bogban v. Diwhre (2005) 16 NWLR (Pt.951) 274.

In the first case, the Supreme Court recognized the power of a trial Court to grant an interim injunction to protect the res which is the subject matter of the suit from being destroyed. The Apex Court opined, that the trial Court can grant the order pending the hearing of the motion on notice dwelling on the same injunction granted in the interim, or a named date; or further direction from the trial judge. The same opinion was shared by this Court in the later case. It should however be pointed out that the issue of tenure of an interim order was not considered or made an issue in the above mentioned cases. Also, the facts of the cases referred to above and the circumstances surrounding the exparte order granted therein, are completely different from what is being contested in the instant case, thus, the said authorities are not applicable herein.

On the issue of undertaking, the learned counsel for the appellants contended that failure of the lower Court to extract an undertaking as to damages from the respondents has made the interim order liable to be set aside. He placed heavy reliance on the case of Kotoye v. Central Bank of Nigeria (supra). As I have earlier observed, each case is decided on the strength of its own peculiar facts or given circumstances, and no authority should be blindly applied without considering the peculiar circumstances of the present case. In the case of Kotoye v. Central Bank of Nigeria (supra), the applicant therein did not give an undertaking in their affidavit support to pay damages; whereas in the instant case, the respondents copiously undertook to pay the damages. See pages 11 and 12 of the record of appeal. Thus, the respondents have fulfilled all they need to do with respect to the interim injunction, and thereby shifted the exercise of discretionary power of assessing and making pronouncement as to the amount to be undertaken to the Court. The Respondents having done all they need to do under the law, should not be held liable for the inadvertence or omission on the part of the trial Court in this regard. Furthermore, in the said Kotoye’s case, the Apex Court observed, that there are some exceptions (though the Apex Court was silent on the said exceptions), to the rule that failure to extract an undertaking from the applicant for an injunction could or would vitiate the injunctive order. This present situation appears to me to qualify as one of such exceptions.

Therefore, I am of the firm viewpoint that the order varying the interim order of injunction was proper and in accordance with the law. In addition, I am also of the deep rooted stand point that the failure of the lower Court to pronounce on or make an order as to the amount the respondents are to undertake as damages in case the interim order of injunction was found to be improperly sought and obtained, did not vitiate the order as the respondents cannot be punished for the inadvertence or omission on the part of the Court. Thus, this issue is resolved in favour of the respondents.

ISSUE 2

The learned counsel for the appellants contended that the learned trial judge (with due respect) erred, by resolving the substantive issue in the case at an interlocutory stage. The learned counsel robustly argued, that holding of the learned trial judge that the land in dispute still belong to the respondents has prejudiced the appellants as such issue was one of the main issue to be determined in the substantive suit, thus, the appellants have been greatly prejudiced. He relied on the decision in the case of N. A. B. v. Mrs. F. M. Saraki & Anor. (1994) 7 – 8 SCNJ 525.

Also, the learned counsel for the appellants contended that the cause of action in this suit arose in 1994 (he relied on Exhibit “PA” in support of the affidavit to set aside the interim order) and the suit was instituted sometimes in 2007, culminating to a period of 13 years. Thus, he submitted that the suit is statute barred and ought to be dismissed. He relied on the provision of Section 3 of the Limitation Law, of Abia State, 1990, Cap. 24.

In his response, the learned counsel for the respondents, argued that the question as to whether or not the learned trial judge delved into substantive matter cannot arise because parties have not filed their pleadings and issues have not been joined by the parties. The learned counsel also argued that in determining whether or not the suit is statute barred (in the circumstance of the instant case) the document to be examined is the respondents’ writ of summons and not the appellants’ affidavit in support of the motion on notice to set aside the interim order. The learned counsel further argued, that the learned trial judge did not make any finding(s) on the substantive suit but merely reviewed admitted facts in the parties affidavit in determining whether or not the interim order was properly made. He therefore submitted that: “In the peculiar circumstances of the facts of this case, the decision of the learned trial Judge cannot be successfully impeached, faulted or held to amount to delving into or determining the merits of the substantive suit at an interlocutory state of the matter.”

In addition, the learned counsel for the respondents, argued that contrary to the contention of the appellant’s the failure of the respondents to file a counter-affidavit against the appellants’ motion to set aside the interim order, does not ipso facto entitle the appellants to the prayer, which they are seeking, as the facts deposed to in the said affidavit in support did not place sufficient materials or facts, capable of establishing the appellants’ claim with regards to the said application. He supported his argument with the following authorities: Alameiyseigha V. Federal Republic of Nigeria (2006) 16 NWLR (Pt.1004) 1 @75; Neka B.B.B. Mfg Co. Ltd. V. ACB Ltd. (2004) 2 NWLR (Pt. 858) 521; FBIR V. I. D. S. Ltd. (2009) 8 NWLR (Pt. 1144) 615 and Akakpo V. Hakeem- Habeeb (1992) 6 NWLR (Pt. 247) 266.

On the issue of Limitation Law, the learned counsel for the respondents argued that the issue of limitation cannot be raised at this stage, because it neither forms the grounds upon which the appellants predicated their motion nor forms the basis of this appeal. He further argued, that the leave of this Court was not sought and obtained before the issue was raised. Hence, the appellants cannot arbitrarily raised it in their brief of argument. He relied on the provision of Order 6 Rule 4 of the Court of Appeal Rules, 2011. In addition, the learned counsel for the respondents argued vehemently, that assuming without conceding that the appellants can raise this issue at this stage, they have failed to comply with the mandatory provisions of Order 25 Rule 6 (1) & (2) of the Abia State High Court (Civil Procedure) Rules, 2001, which required that such defences as statute bar, fraud, and related defences should be specifically pleaded.

Again, learned respondents’ counsel argued that in determination of whether or not the respondents’ suit is statute barred, the proper process to be examined is the respondents’ writ of summon and not the appellant’s affidavit in support of motion to set aside the interim order. He contended that the respondents in their writ of summons alleged that the appellants’ trespass is continuous, thus, the cause of action cannot be held to be statute barred. The learned counsel then submitted that, “the suit of the Plaintiff/Respondents is neither statute barred nor can the Defendants/Appellant raise that issue at all or in the manner they did. It is further submitted that Defendants/Appellants argument on the point of limitation of action is misconceived and should be discountenanced.”

Before attempting to resolve this issue, it is pertinent to observe herein, that apart from the motion on notice and the affidavit in support together with exhibits in support thereof, the only process filed in respect of the substantive suit is the respondents’ writ of summons, thus, I agree with the learned counsel for the respondents, that the parties have not properly joined issues in respect of any averment(s) or fact(s) in this suit. It is elementary law, that in determining whether or not an action is statute barred, the proper document to be examined is the Plaintiff’s statement of claim and not statement of defence or any other document. Thus, I agree with the contention of the learned counsel for the respondents, that the respondents’ suit cannot be held at least at this point in time, to be statute barred based on the appellants’ affidavit in support of their motion on notice to set aside the interim order.

Also, I agree with the submission of the learned counsel for the respondents, that the issue of limitation law or statute of limitation was not properly raised before this Court. The grounds upon which the appellants challenged the interim order of injunction are as follows:

“(1) The Order of Interim Injunction was obtained based on distorted and misrepresented facts and misstatements deliberately presented to the Court by the Plaintiff.

(2) The Plaintiffs suit as presently constituted is incompetent, an abuse of Court process consequently depriving this Honourable Court of the jurisdiction to entertain same”.

(See page 17 of the record of appeal.)

In addition, the appellants’ grounds of appeal or issues for determination cannot by whatever leverage be extended to cover Limitation Law. It is the correct position of law, as the learned counsel for the appellants contended in their reply brief, that an objection based on limitation law goes to the root or jurisdiction of the Court, thus, it can be raised at any stage of the proceedings even for the first time at the Apex Court. Nevertheless, the issue must be properly raised. In the instant case, the issue was introduced by the appellants in the course of arguments in respect of their Issue No. 2. What is more, the said issue is mainly on the appellants’ allegation, that the learned trial judge wrongly delved into substantive issues. The appellants did not make the objection by means of the action being statute barred as a ground for challenging the interim order or one of the grounds of appeal. Also, they did not file a motion on notice in respect thereof. Thus, I agree with the learned counsel for the respondents, that the issue which pertained to the limitation law was not properly raised before this Court. Thus, all arguments in respect thereof are completely discountenanced.

Again, having previously observed, that the parties are yet to file their pleadings and join issues in respect of this case; thus, the lower Court cannot be held to have delved into any substantive issue which is yet to be placed before it. It is also pertinent to note, that the findings allegedly made by the learned trial judge, were based on the parties’ affidavits in respect of their respective motions on notice. In fact, the learned trial judge made the said findings based on the invitation of the learned counsel for the appellants (both at the said lower Court and before this Court) who now turned around to criticize the said learned trial judge. This is more or less approbating and reprobating, which this Court would not close its eyes to or allow to stand. Furthermore, I agree with the submission of the learned counsel for respondents that even if the learned trial Court delved into the substantive issue and made a finding on the same at an interlocutory stage, it does not ipso facto make the order granted void or liable to be set aside, provided the order was properly made. The party affected by the said order, if they feel that their case has been compromised or prejudiced by the said finding are at liberty to apply, that the suit be transferred to another judge in the same jurisdiction. See the case of Nigerian Gas Co. Ltd v. Onwubuya (1998) 10 NWLR (Pt. 569) 322. Thus, this issue is also resolved in favour of the respondents.

ISSUE 3

The learned counsel for the appellants contended that the instant suit was properly instituted and the respondents lack the locus to bring this action on behalf of the Osusu Aba Village people. The appellants further contended, that they are from the said Osusu village and the 1st appellant is in fact the village head and they did not authorize the respondents to institute this suit on their behalf. Thus, the learned counsel submitted, “that this suit is improperly constituted as a representative suit and has not satisfied the condition precedent to exercise of jurisdiction.” He relied on the case of Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & Ors. (1987) 2 NWLR (Pt. 58) 587. He urged this Court to hold, that this suit was improperly constituted as a suit filed in a representative capacity. According to the learned counsel, that such a suit is liable to be struck out for being incompetent and an abuse of Court process. He urged on us, that we should resolve this issue in favour of the appellants.

In reply, the learned counsel for the respondents, submitted that the contention of the appellants in respect of this issue was highly misplaced. The learned counsel contended that the respondents need not obtain the permission of the appellants before bringing this action in a representative capacity. The learned counsel also argued that the appellants’ interest being adverse to that of the respondents, the appellants cannot be held to have been included in the class of persons which the respondents are representing in this suit. Thus, he submitted that this suit is not incompetent or liable to be struck out. He referred us to the following cases. Dr. Augustine N. Mozie & 6 Ors. v. Chike Mbamalu & 2 Ors. (2006) 15 NWLR (Pt. 1003) 466; Okeahialam & Anor. v. Nwamara (2003) 11 SCM, 79 and Chief Ezekiel Amadike & Ors. V. The Governor of Imo State & Ors. (1993) 2 NWLR (Pt. 275) 302. He therefore, urged this Court to resolve this issue in the negative and in favour of the respondents.

As a general rule, it is trite that a party cannot be a plaintiff and defendant in a suit simultaneously. This is because it defies reason for a party to enforce a judgment against himself. Conversely, it will be logically and legally absurd to allow a party to institute a suit against himself.

Allowing the occurrence of such a scenario, would not only result in abuse of Court process but ridicule the Court process itself in the eyes of ordinary men. However, this legal principle like every principle admit of some exceptions. One of such exception has been enunciated upon by the Supreme Court, Per Ayoola, JSC, in the case of Okeahialam & Anor. V. Nwamara & Ors. (2003) 12 NWLR (Pt. 835) 597; (2003) LPELR – 2429, 13 -14 wherein His Lordship held with erudition and I quote:

“The general rule is that the same person cannot be both a plaintiff and a defendant in the same action. However, in my opinion, that general rule, strictly understood, is only applicable to parties actually before the Court. The distinction between the parties named in the proceedings and the person represented in the proceedings is always present. In representative processings, for instance, a person represented in but not a party to the proceedings cannot have the judgment in the representative proceedings enforced against him without leave, whereas it would have been so enforceable against the defendant or defendants actually before the Court. The common sense approach adopted in the judgment of the Court below quoted above is to be preferred to a tight adherence to a rule which is more applicable to cases in which the same person is named as a party, even if in different capacities, as both the plaintiff and the defendant. I am of the same view as the Court below that in a representative action the person who named himself as a Plaintiff suing the defendant in a representative capacity must be deemed to have excluded himself from the class represented by the representative defendant. It defies reason to argue that a person who has sued a defendant as representing an association to which he belongs for wrongfully acting against his interest must be deemed to be represented as a defendant by the named defendant merely because he did not expressly state that he had exempted himself, just as it would have defied reason to presume that he had alleged a wrong committed by himself against himself”.

I have carefully reviewed the case of Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & Ors. (1987) 2 NWLR (Pt. 58) 587 relied upon by the learned counsel for the appellants. The facts of the said case are neither on all fours with the instant appeal nor issues decided therein related to this appeal. Thus, the case is not applicable to this appeal. In this vein, I totally agree with the learned trial judge, that this suit was properly constituted with regard to the parties. That is, the fact that appellants are themselves members of the community which the respondents are representing in this case, does not render the action as being improperly constituted, as the appellants are by law deemed to have been excluded from the class of persons the respondents are representing due to their conflicting or adverse interests. Therefore, this issue too is resolved in favour of the respondents and against the appellants.

Having resolved the issues formulated for the determination of this appeal in the above stated manner, I am of the firm view point that this appeal is totally lacking in merit and the same is accordingly dismissed by me. The ruling of the lower Court, delivered on the 2nd day of May, 2008 by Hon. Justice Ory Zik Ikeorha, J., in Suit No. A/241/2007 is hereby affirmed by me. Costs in the sum of N50, 000.00 is awarded against the appellants and in favour of the respondents.

AGBO, JCA

I read in draft the lead judgment of my learned brother Oredola JCA and I agree with him that this appeal should be dismissed. I abide by the consequential orders contained in the lead judgment.

AWOTOYE, JCA

I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA I am in complete agreement with the reasoning and conclusion therein. I also resolve all the issues in this appeal in favour of the Respondents.

This appeal lacks merit. I abide by the consequential orders in the lead judgment (including costs).