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STANDARD CHARTERED BANK NIGERIA LIMITED
V. DR. TUNJI BRAITHWAITE

CITATION: (2013) LPELR-20814(CA)

In The Court of Appeal

(Lagos Judicial Division)
On Friday, the 31st day of May, 2013

Suit No: CA/L/1192/2010

Before Their Lordships

AMINA ADAMU AUGIE Justice, Court of Appeal
CHIMA CENTUS NWEZE Justice, Court of Appeal
CHINWE EUGENIA IYIZOBA Justice, Court of Appeal

Between

STANDARD

CHARTERED BANK Appellant

NIGERIA LIMITED

DR. TUNJI And
BRAITHWAITE Respondent

RATIO DECIDENDI

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1 PRACTICE AND PROCEDURE -

ACCELERATED HEARING: Whether the

courts are enjoined to accelerate hearing

when faced with massive affidavits and

lengthy arguments on interlocutory injunction

"In Onyesoh v. Nnebedum (supra),
Nnaemeka-Agu JSC explained further that "[t]
he better view is, therefore, that whenever it
is possible to accelerate the hearing instead of
wading through massive affidavits and hearing
lengthy argument on interlocutory injunction,
the court should accelerate the hearing and
decide finally on the rights of the parties,"
citing John Holt Nig Ltd v. Holt African
Workers Union of Nigeria and Cameroon
(supra); Civil Service Union v. Essien (1985)
3 NWLR (pt 12) 306." Per NWEZE, J.C.A. (P.
43, Paras. A-D) - read in context

2 EQUITY - EQUITY: Nature of equity

"Equity, like an immaculate garment, abhors
the company of those who are either likely to
contaminate its majesty; taint its purity or
dampen its allure! Above all, since she does
not trade on detergents, those who approach
her hallowed portals are forewarned to
denude their hands of all dirt and appear with
unimpeachable allegations!" Per NWEZE,
J.C.A. (P. 39, Paras. D-F) - read in context

2

3 EQUITABLE REMEDIES - INTERIM
INJUNCTIONS: Nature and features of
interim injunctions

"Interim injunctions ..., while often showing
the trammels of the orders of injunctions
made ex parte are not necessarily
conterminous with them. Their main feature
which distinguishes them from interlocutory
injunctions is that they are made to preserve
the status quo until a named date or until
further order or until an application on notice
can be heard. They are also for cases of real
urgency. But unlike ex parte orders for
injunction, they can be made during the
hearing of a motion on notice for interlocutory
injunction when, because of the length of the
hearing, it is shown that an irretrievable
mischief or damage may be occasioned before
the completion of hearing. Also it can be made
to avoid such an irretrievable mischief or
damage when due to the pressure of business
of the court or through no fault of the
applicant it is impossible to hear and
determine the application on notice for
interlocutory injunction, see, Basse v.
Woodhouse (1970) 1 WLR 586 at page 590. It
must however be emphasized that what the
court does in such a case is not to hear the
application for interlocutory injunction ex
parte behind of the respondent but to make

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an order which has the effect of preserving
the status quo until the application for
interlocutory injunction can be heard and
determined." Per NWEZE, J.C.A. (P. 42, Paras.
A-F) - read in context

4 COURT - JUDICIAL DISCRETION: Nature of
judicial discretion
"By its very character, judicial discretion does
not brook any capricious exercise of power
according to private fancies and affections. We
find support for this opinion in Rook's case
(1598) 5 Co. Rep. 996, cited in Ayantuyi v.
Governor of Ondo (2005) 14 W R N 67, 91."
Per NWEZE, J.C.A. (P. 39, Paras. B-D) - read
in context

CHIMA CENTUS NWEZE, J.C.A. (Delivering the
Leading Judgment): At the High Court of Lagos
State, the respondent in this appeal, [as Claimant],
took out a Writ of Summons accompanied by a
Statement of Claim, both dated October 4, 2010, in
which he sought, inter alia, declaratory and
injunctive reliefs against the appellants (as
defendants). On the same day, he beseeched the
court (hereinafter referred to as the lower court)
with an application for:
An order of interlocutory injunction, restraining the
defendant quia timet, from doing whether by

4

himself (sic) or by his (sic) agents or servants or
otherwise howsoever, from commencing with the
construction of the proposed 14 storey building and
5 level car park on the premises known and situate
at No 142 Ahmadu Bello Way, Victoria Island,
Lagos, and also known as Plot 141 Elias Close,
Victoria Island, Lagos, pending the determination of
the suit.

Like Oliver Twist in Charles Dickens' favourite
novel, the following day, October 5, 2010, the
respondent, [as Claimant/applicant], importuned
the lower court, through an ex parte application,
for an:
An order of interlocutory injunction, restraining the
defendant quia timet, from doing whether by
himself (sic) or by his (sic) agents or servants or
otherwise howsoever, from commencing with the
construction of the proposed 14 storey building and
5 level car park on the premises known and situate,
at No 142 Ahmadu Bello Way, Victoria Island,
Lagos, and also known as Plot 141 Elias Close,
Victoria Island, Lagos, pending the determination of
the Motion on Notice filed in this suit.
Expectedly, the applications prompted the filing of a
plethora of processes: counter-affidavit; further
affidavit; documentary exhibits and written
addresses. Not done yet, on October 9, 2010, the
respondent, [as applicant], further, implored the
lower court to visit the locus in quo. On November
2, 2010, Counsel canvassed arguments for and
against the application of October 4 for
interlocutory injunction. In its ruling of November

5

24, 2010, the court, (coram Olateru-Olagbegi, J.)
decreed, inter alia, that an:
Order of preservation of status quo be and is
hereby made to the effect that all civil engineering
and building works in respect of the project
proposed by the respondent at 142, Ahmadu Bello
Way, Victoria Island, Lagos, shall cease forthwith
until the next date of adjournment.
This appeal is the defendant/respondent's
expression of dissatisfaction against the said ruling.
Two issues were submitted for the determination of
the appeal.
They were framed thus:
(1) Whether the lower court had the jurisdiction or
exercised such jurisdiction correctly when it made
the preservative order complained of, having
refused to grant the respondent's application for
interlocutory injunction?
(2) Whether the provisions of Section 24 of the
High Court Law of Lagos State, together with the
provisions of Order 38 Rule 2 of the High Court
(Civil Procedure) Rules, 2004, clothe the lower
court with the jurisdiction/power to enter a
preservative order upon the refusal of an
application for interlocutory injunction made to it?
ARGUMENTS ON THE ISSUES
Issue 1
(i) Whether the lower court had the jurisdiction or
exercised such jurisdiction correctly when it made
the preservative order complained of, having
refused to grant the respondent's application for
interlocutory injunction?

6

When this appeal came up for hearing on April 9,
2013, counsel for the appellant, A. A. Adegbonnire,
appearing with O. Iyayi and O. Falaye, adopted the
appellant's brief of argument filed on January 21,
2011. In the said brief, Counsel drew the courts
attention to what he called "salient points/facts".
He litanised them thus:
(a) The property situate and lying at No. 142,
Ahmadu Bello Way Victoria Island, Lagos, is the
property of the appellant: a common fact between
the parties to this appeal and clearly stated by the
lower court in its ruling under appeal.
He referred to the ruling at pages 459-467 of the
record, particularly, particularly at pages 460-461
of the record and the Counter-Affidavit of Suzanne
Oluwole made in opposition to the grant of the
respondent's application for injunctive relief dated
October 4, 2011, pages 74-202 of the record.
(b) There is no dispute between the parties herein
as to the proprietorship of the property situate,
lying and known as No. 142, Ahmadu Bello Way,
Victoria Island, Lagos.
(c) The appellant's application dated October 4,
2010, the subject of the lower Court's ruling now
under appeal, was for the grant of an interlocutory
injunction pending the hearing and determination
of the substantive suit, pages 203 - 253 of the
record.
(d) The respondent did also seek an interim order
vide an ex-parte application dated 5th day of
October, 2010 which was not granted by the lower
court, pages 396 and 455 of the record.

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(e) The lower court in its ruling now under appeal,
particularly at pages 462-464, did find that having
regard to the contents of the affidavit presented to
it by the parties herein, it was not possible to
resolve the conflict of facts/issues between the
parties herein without delving into the merits of the
substantive suit, and that the proper approach was
to "stop hearing the application and accelerate the
trial of the substantive".
(f) There is no cross-appeal filed by the respondent
in this appeal, neither has he filed a respondent's
Notice to affirm the decision of the lower court on
other grounds.
He hinted that all of these points would be referred
to in subsequent parts of the brief to show that the
issue now under consideration is one which ought
to be resolved in favour of the appellant. In his
view, it is beyond doubt, from a reading of the
ruling of the lower court now under appeal, that
the said court found that the case presented to it
by the parties herein with regard to the grant of an
interlocutory injunction pending the hearing and
determination of the substantive suit, was one
which called for the refusal of such an application,
and in its stead, grant an order for accelerated
hearing. He referred to the lower court's ruling,
pages 462 - 464 of the record.
Counsel pointed out that the lower court found that
it was inappropriate having regard to the facts of
the case before it, the contents of the affidavits
exchanged by the parties herein and the decision it
relied upon in its own ruling, to proceed to grant

8

the respondent's application of October 4, 2010.
The court was of the view that the proper order to
make was one acceleration the hearing of the
substantive suit.
He observed that what prompted this appeal was
that despite the finding of the lower court that it
was inappropriate to grant the respondent's
application for injunctive relief dated October 4,
2010, it proceeded to grant a preservative order in
the nature of an interim injunction. The court made
an interim order after it had taken arguments from
the parties herein; had reached a decision that in
the circumstances of the case, an injunction ought
not to be granted.
He submitted that the grant of a preservative order
in the nature of an interim order as was done by
the lower court in the circumstances, was
manifestly wrong and made without jurisdiction,
having regard to laid down principles of law which
the lower court itself recognized and admitted.
These principles of law made the grant of an
injunction inappropriate in the circumstances of the
case.
He noted that the clear distinction between an
interim and interlocutory injunction must be stated
and recognized. In his view, this distinction which
the lower court, clearly, did not consider, led it to
granting an interim order after having heard
parties in respect of the respondent's application for
interlocutory injunction dated October 4, 2010,
citing 7-UP Bottling Company Limited and Ors v.
Abiola and Sons Nigeria Limited [1995] 3 NWLR (pt

9

383) 257, 276 - 277.
He observed that it was clear, from a reading of the
above decision, that the law recognizes that any
order of injunction granted not pending the
determination of a pending suit, is and must be
regarded as an interim order of injunction. He
maintained that the law clearly does not
contemplate that a court which has heard
arguments in respect of an application for the grant
of an interlocutory injunction, would in its ruling in
respect thereof, proceed to refuse the interlocutory
injunction stating that it was not proper case to
grant one, but proceed to enter a preservative
order in the nature of an interim order as the Court
below did.
He took the view that there was no doubt that the
lower court held that an order of interlocutory
injunction, as prayed for by the respondent in its
application for interlocutory injunction dated
October 4, 2010, was one which it must not make,
having regard to the facts presented to it by the
appellant and the respondent. The court held that
the proper order to make would be one accelerating
the trial of the substantive suit.
He maintained that the grant of the said
preservative order was more worrisome because no
appellate court decisions regarding the grant or
refusal of an order of interlocutory injunction, ever
contemplated or stated that a court could, having
found, as the court below did, that the entering of
an order of interlocutory injunction was
inappropriate in the circumstances of the case

10

before it, order accelerated hearing but still
proceed to make an interim order of injunction as
the lower court did. He noted that the grant of an
interim order of injunction is one which is done
upon extreme urgency being shown by the party
seeking such an injunction.
He canvassed the view that the lower court did not
form the opinion that the rights of the respondent
had to be urgently protected. This, in his
contention, was clearly shown and demonstrated by
the court's refusal to entertain the respondent's
application for interim injunction dated October 5,
2010, citing pages 254-365 of the record which
contain the respondent's application for interim
injunction. He, also, cited page 306 of the record
which contains the directives of the court below.
The following endorsement is contained therein:
"Registrar FIX MON DTD 4-10-2010 for
26-10-2010." (If our reading of this entry is
correct, it reads in full "Registrar, fix the motion
dated October 4, 2010 for October 26, 2010.")
He maintained that the lower court, clearly,
declined to hear the respondent's application for
interim injunction. In his view, this fact was
significant in that the only situation envisaged by
law, where a court faced with an application for
interlocutory injunction may make an interim
order, was either before the hearing of the
application for interlocutory injunction or in the
course of the hearing of the application for
interlocutory injunction, but before it ruled in
respect thereof. This was clearly not the case at the

11

lower court, citing Bank Boston NA USA and Ors v.
Adegoroye (2000) 3 NWLR (pt. 644) 215, 225.
Counsel pointed out that, in the instant appeal, the
lower court refused to entertain the respondent's
application for the grant of an interim order of
injunction as prayed for in the respondent's
application dated October 5, 2010.
The court did not make the preservative order
during the course of hearing arguments in respect
of the respondent's application for interlocutory
injunction. Rather, the lower court entered an
interim order of injunction in its ruling relating to
the respondent's application for interlocutory
injunction after having found that it was
inappropriate to grant the said application.
He maintained that the approach and ruling of the
lower court, now under appeal, was unknown to
law. In his view, the said ruling runs contrary to all
of the laid down principles of law on the grant or
refusal of an application for the grant of an
interlocutory injunction. He noted that no binding
decision ever sanctioned the view that a court
could, after holding that the justice of a case would
be best served by accelerating the hearing of a
cause, proceed to enter an injunction as the lower
court did.
On the contrary, he prayed in aid the authority of
Duwin Pharmaceutical Chemical Company Ltd v.
Beneks Pharmaceutical and Cosmetic Limited and
Ors [2008] 4 NWLR (pt. 1077) 376, 401-413 for
the view that once a court finds that the interests
of justice would be best served by accelerating the

12

hearing of the substantive suit rather than
dissipating its energy in hearing an application for
the grant of an injunction, it must immediately stop
the hearing of the application for injunction and
proceed to accelerate the hearing of the
substantive suit.
He drew attention to the ruling of the lower court
at Pages 459-467, particularly at pages 463 where
it held thus:
It is in the view of this court not possible to resolve
these issues without delving into the merits of the
case. These particular questions can be answered
only upon conclusion of trial. The case of Globe
Fishing Industries v. Coker (1990) 7 NWLR (pt 162)
265 SC at page 294 para F - G Nnaemeka- Agu
stated thus:
For the whole approach to an application for an
order of interlocutory injunction should always take
into account the clear implication that the court is
not to try the issues in contention in the case twice,
first while considering the application for
interlocutory injunction and second during the trial.
Once the court is faced with a situation where it
may have to do that in order to give due
consideration to the application, the correct thing
to do is to stop hearing the application and
accelerate the trial of the substantive suit...
He canvassed the view that the lower court did not
exercise its discretion judicially and judiciously.
Worse still, it was not in tandem with Globe Fishing
Industries Ltd and Ors v. Coker (1990) 7 NWLR (pt
162) 265, 294 which it relied on.

13

He observed that in the said case Nnaemeka-Agu
JSC, clearly, stated that once a Court found, as the
lower court did, that to properly determine an
application for interlocutory injunction, it would to
delve into the issues for trial, it must "stop hearing
the application and accelerate the trial of the
substantive suit".
He submitted that the words "hearing the
application" used in Globe Fishing Industries Ltd
and ors v. Coker (supra), did not envisage or
permit the grant of any form of injunction in such
circumstances. In his view, the Supreme Court did
not envisage that an injunction would be granted in
respect of an application where hearing had been
stopped.
He referred to page 463 of the record. There, the
lower court found that: "it is the view of this court
not possible to resolve these issues without delving
into the merits of the case. These particular
questions can be answered only upon conclusion of
trial." He explained that since this was not
challenged, it was binding on the parties. Parties
are, therefore, not permitted the indulgence of
proffering any arguments which seek to disturb the
said finding, Otuedon and Anor v. Olugbor and Ors
(1997) 9 NWLR (pt. 521) 355, 384; Abubakar v.
Bebeji Oil And Allied Products Limited and Ors
[2007] 18 NWLR (pt. 1066) 319, 381 citing
Sections 150 and 151 of the Evidence Act (then
applicable) and Iga and Ors v. Amakiri and Ors
(1976) 11 SC 1, 12-13; African Continental Bank
Plc v. Nwobisike (1995) 8 NWLR (pt. 416) 725,

14

742; Olaniyan v. University of Lagos (1985) 2
NWLR (pt. 9) 599; Kasa v. State (1994) 5 NWLR
(pt. 344) 269, 289; Adejumo v. Ayantegbe (1989)
3 NWLR (pt. 110) 417; Awote v. Owodunni (1986)
5 NWLR (pt. 46) 941, 946.
He observed that this court, in determining this
appeal, must therefore proceed from the premise
that the lower court had, by itself, found that it
would not be just, fair and judicious to grant the
respondent's application for interlocutory
injunction. Above all, the court, further, found that
its jurisdiction and discretion could only be
judicially and judiciously exercised by refusing the
injunction and granting an accelerating hearing of
the substantive suit.
He submitted that, being the premises upon which
this appeal could be determined fairly, the only
question which this court would consider is:
whether the lower court was right, having regard to
the state of Nigerian law in this respect, to have
proceed after such a finding to enter an interim
injunction? He returned a negative answer. He
contended that the lower court, by entering the
interim order appealed against, went against
several judicial authorities relating to the issue now
presented to this court for determination.
He took the view that the said order of interim
injunction, clearly, did not flow from its said
finding, and ought to be set aside by this court. He
maintained that a court was not permitted to enter
an order of injunction after it had held that the
issues presented to it for adjudication at an

15

interlocutory stage were better resolved at trial.
He, further, submitted that, having held that the
issues were best determined at trial, the lower
court had, by its own very word, admitted that it
gave no consideration to or made no determination
as to the entitlement of the respondent to the grant
of the interlocutory injunction he prayed for,
neither did it consider the principles/conditions
which must be addressed/determined by a court
before granting or refusing to grant an application
for an order of injunction. He maintained that the
lower court gave no reason or valid/legal reason in
its entire ruling which informed its decision to grant
an interim order of injunction after arguments had
been taken upon an application for interlocutory
injunction.
He submitted that this was clearly a case where the
lower court's exercise of jurisdiction and discretion
must be disturbed by this court. He gave reasons:
the lower court acted on an, entirely, wrong
principle. It, also, failed to take cognizance of its
own very finding that the application before it could
not be fairly and justly determined without delving
into the facts/issues best resolved at trial. Above
all, the court violated the principles of fair hearing
as enshrined in the 1999 constitution of the
Federal Republic of Nigeria, in that it gave an order
in respect of which it neither gave a valid/legal
reason, nor placed reliance on any facts. He cited
Alsthom S.A. and Anor v. Saraki [2005] 3 NWLR
(pt. 911) 208, 224 - 225 as authority for the view
that where a court exercised its discretion on an

16

entirely wrong principle, or failed to take all the
circumstances of a case into consideration, the
appellate court must interfere with the exercise of
discretion by the lower Court.
He noted that, from the ruling of the lower court, it
did not consider any conditions which a party
seeking an order for interlocutory injunction must
meet and/or satisfy before such an injunctive order
would be granted. He contended that, above all, the
court acted upon a misconception of law. In his
view, it is in the interest of justice to set-aside the
said interim order of injunction. He cited M and B
Electrical Company Ltd v. The Government of Cross
Rivers State and Anor (2005) 6 NWLR (pt. 922)
471, 490. He contended that, on the above
authority, the appellate court must interfere with
the lower court's exercise of discretion.
He explained that, in the instant appeal, the
appellant has shown that there is no principle of
law which permits a court to grant an interim order
of injunction after taking arguments in respect of
an application for an interlocutory injunction and in
the course of delivering its ruling in respect of the
said application. He noted that the court, in fact,
made an order for accelerated hearing, page 467 of
the record. He maintained that the appellant has
also shown that it is in interest of justice for the
order appealed against to be set-aside for the
simple reason that the lower court, by its own very
admission, gave no consideration to the facts
presented to it by both parties in order to
determine whether or not the respondent had made

17

a case out, entitling him to the grant of an
interlocutory injunction. The court, in fact, found
that to do so would lead to determining issues
which are best determined at trial.
He canvassed the view that a ruling, such as the
one, the subject of the instant appeal, which gave
no reason for finding in favour of a party sought an
order of interlocutory injunction, but admitted that
it could not do so without delving into
matters/issues best determined at trial, could not
be said to have been given in the interest of
justice.
He explained that this appeal was not an appeal
which challenged the lower court's consideration of
the principles relating to or conditions which must
be met before a party was granted an injunction.
That would be impossible by reason of the fact that
the lower court in its ruling admitted that it did not
give consideration to these principles and/or
conditions. On the contrary, the appeal challenges
the decision of the lower court for granting an
interim order of injunction during the course of
delivering its ruling in respect of an application for
injunction and after having held that it could not
determine the respondent's application for the
grant of an interlocutory injunction without delving
into issues determined at trial. He urged the court
to resolve the first issue for determination in favour
of the appellant and set aside the interim order of
injunction entered by the lower court on the 24th
day of November, 2010.
ISSUE TWO

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Whether the provisions of Section 24 of the High
Court Law of Lagos State, together with the
provisions of Order 38 Rule 2 of the High Court
(Civil procedure) Rules, 2004, clothe the lower
court with the jurisdiction/power to enter a
preservative order upon the refusal of an
application for interlocutory injunction made to it?
On this issue, counsel observed that, in making the
order of interim injunction now under appeal, the
lower court relied upon the provisions of Order 38
Rule 2 of the High Court of Lagos State [Civil
Procedure] Rules, 2004 (the Rules) and Section 24
of the High Court Law of Lagos State, Cap H3, Laws
of Lagos State of Nigeria, 2003 [the Law].
He contended that, in employing or relying upon
the provisions of Order 38 Rule 2 of the Rules and
Section 24 of the Law, the lower court failed to give
due consideration to the provisions of both
enactments. In his view, if it had done so, it would
have been manifest to it that the powers so
conferred upon the court by these two enactments
do not clothe it with the authority or jurisdiction to
make orders not contemplated by the rules and law
as it did on November 24, 2010.
He explained that the provisions of Order 38 Rule 2
(supra) contemplate that no order of injunction
would, in such circumstances, be granted. He
referred to what he called "the operative words of
the Rule" which provide that: "whenever an
application shall be made before trial for an
injunction or other order and on the opening of
such application, or at any time during the hearing

19

thereof, it shall appear to the judge that the matter
in controversy in the cause or matter is one which
can be most conveniently dealt with by an early
trial, without first going into the whole merits on
affidavit or other evidence for the purposes of the
application..."
From this, he extrapolated that -
(a) The rule contemplates that any order which the
High Court of Lagos State may make pursuant to
the provisions of the said rule is one made at the
opening of such application, i.e. upon its attention
being drawn to its pendency or at the hearing, i.e.
during the arguments of Counsel for and against.
(b) The rule does not permit the High Court of
Lagos State to enter an order of injunction after it
must have come to the conclusion "that the matter
in controversy in the cause or matter is one which
can be most conveniently dealt with by an early
trial", for the rule itself envisages a situation where
the judge before "going into the whole merits on
affidavit or other evidence" for the purpose of
determining the application for injunction, stops the
hearing of the application.
(c) It is clear that any order made pursuant to the
provisions of Order 38 Rules, must be one made at
"the opening of such application" for injunction or
during "its hearing", and not after hearing and
during the course of delivery of the ruling in
respect of such application, as the Court below did.
(d) Upon a decision that the issues presented to it
are best resolved at trial, the lower court cannot
without a resolution of such issues, make an order

20

of interim injunction as the justice of the case does
not require such.
He submitted that the provision of Order 38 Rule 2
is, in fact, a codification of the principles applicable
in situations where the court forms the opinion, as
the court below did, that it could not, fairly and
justly, determine an application for interlocutory
injunction without delving into the merits of the
case. In his view, Globe Fishing Industries Ltd and
Ors v. Coker (supra), which captures the situation
contemplated by Order 38 Rule 2 of the rules,
shows that in such circumstances, the concerned
court cannot make an order of injunction as done
by the lower court for it envisages that the hearing
of such an application would be halted or stopped.
He explained that, in the instant appeal, the
hearing of the application was concluded and ruling
was adjourned to November 24, 2010. It was in the
course of delivering its ruling in respect of the
application for injunction and after having held that
it could not determine the respondent's application
for injunction, without delving into issues that were
best resolved at the trial, that the lower court
proceeded to enter an order of injunction contrary
to the provisions of Order 38 Rule 2.
According to learned counsel, Order 38 Rule 2 of
the Rules does not clothe the lower court with the
discretion to make an order of injunction after the
hearing of an application for injunction once it
determined, as the lower court did, that it could not
reach a determination of such an application
without delving into the merits of the substantive

21

suit. In his view, the nature of the order envisaged
in Order 38 Rule 2 of the Rules was one geared
towards the speedy trial of the cause, such as the
time within which to exchange pleadings or an
order doing away with pre-trial formalities. The
justice of such a case cannot warrant the entering
of an order of injunction. Such an order would run
contrary to the tenets of fair-hearing by reason of
the fact that the effect of entering such an order
would mean that the lower court was empowered to
grant an interlocutory injunction without deciding
whether or not the respondents was entitled to the
grant of such an order.
He contended that Section 24 (supra) did not
empower the lower court to promote reconciliation
among parties and encourage arid facilitate
amicable settlement by making an order which the
law does not contemplate can or should be made in
the circumstances of this appeal. The powers to
promote, encourage and facilitate amicable
settlement is not one that envisages that the lower
court would make an order which the law forbids it
from making upon the premise that it was trying to
promote or encourage amicable settlement.
In his view, any order made by the lower court
pursuant to this law must be one which exhibits a
judicious and judicial exercise of discretionary
power. Such judicious and judicial exercise of
discretion must be one which is done in conformity
with laid down principles of law relating to the
circumstances/facts presented to the court. Such
powers cannot be exercised without regard to

22

principles of law as the lower court, apparently, did.
He contended that the grant of the order of
injunction, in the circumstances of this appeal, was
not contemplated by the provisions of Section 24 of
the Law as such exercise ran contrary to laid down
principles of law as shown above. He noted that
Section 24 (supra) was not a blanket provision
which the lower court could employ to make orders
which ran contrary to the laid down principles of
law as was done by the court below. The said
Section 24 did not permit arbitrariness. He urged
the court to resolve Issue 2 in favour the appellant.
RESPONDENT'S SUBMISSIONS
As noted earlier, the respondent submitted a sole
issue for the determination of this appeal. He
framed it thus:
Whether the lower court has the jurisdiction and
power to make an Interim preservation order
where the order is for limited and stated time
frame, and in accordance with order 38 Rule 2 of
the High Court of Lagos State (Civil Procedure)
Rules, 2004.
RESPONDENT'S ARGUMENTS ON THE SOLE
ISSUE
Learned counsel for respondent, I. S. Usman,
adopted the brief filed on August 26, 2011. In the
said brief, he contended that in making the order
for the preservation of status quo on the November
24, 2010, the lower court directed parties to meet
with a view also an amicable resolution of the
issues in the substantive suit. It, also, ordered the
parties herein to file processes for accelerated trial

23

of the substantive suit.
He contended that the lower court, by the tenor
and nature of its order, made an interim order and,
as well, sought to promote reconciliation among the
parties, failing which the court would proceed to an
accelerated trial of the substantive suit. He
submitted that the appellant, in its disregard of the
order of court to cease further civil engineering
works, merely, underscored the necessity and the
imperative of the law that "it shall be lawful for the
judge to make an order for such trial accordingly
and in the meantime to make such order as the
justice of the case may require," citing Order 38
Rule 2 of the High Court of Lagos State (Civil
Procedure) Rules, 2004.
He submitted that a court, when faced with an
application for Interlocutory Injunction, has the
power to order an accelerated trial in lieu of
Interlocutory Injunction, and meanwhile make an
order of Interim Injunction, citing John Holt Nigeria
Limited and Anor v. Holts African Workers Union of
Nigeria and Cameroons (1963) 1 ANLR 385; Globe
Fishing Industries v. Coker (1990) 7 NWLR (pt.
162) 265; 7 - Up Bottling Company Limited and ors
v. Abiola and Sons Nigeria Limited (1995) 3 NWLR
(Pt. 383) 257, 277.
He canvassed the view that Section 18 (1), (2) and
(3) of the High Court of Lagos State, Cap H3, Laws
of Lagos State of Nigeria, 2003, gives the lower
court the power to make injunctions in appropriate
cases. He cited Order 38 Rule 2 of the High Court
of Lagos State (Civil Procedure) Rules, 2004, made

24

pursuant to the High Court Law of Lagos State
(supra).
He submitted that the lower court, by the virtue of
the above Rule, was empowered, both in Law and
in Equity, to make an Interim Preservative Order,
notwithstanding the order to accelerate the trial of
the substantive suit. He contended that the only
genuine issue in this appeal was that formulated by
the respondent herein. He contended that the
attempt by the appellant to introduce extraneous
matters into this appeal should be discountenanced.
He, first, observed that nowhere did the lower
court, in its ruling dated November 24, 2010, state
that it refused the respondent's application for
interlocutory injunction dated October 4, 2010. He
maintained that it was a grave error for the
appellant to assert that the lower court refused the
respondent's said application. He maintained that
the lower court did not refuse to grant the
respondent's ex parte application for interim
Injunction as it was the respondent himself who
withdrew that application on November 2, 2010,
since the appellant was already before the court,
page 455 of the record.
He submitted that it was most apt to attempt a
definition of an interim order to properly
contextualize the issue at hand. He referred to The
New Lexicon Webster's Dictionary of the English
Language, Deluxe Encyclopedic Edition, (New York:
Lexicon Publications, Inc., 1991) 504 which defines
the word 'interim' thus: "an interval between two
actions"; "provisional", "temporary." He, equally,

25

cited the Black's Law Dictionary, 5th Edition, West
publishing Co which defines 'interim order, as
follows: "interim: in the meantime, meanwhile,
temporary; between," "interim order: one made in
the meantime, and until something is done. He
referred to the judicial definition of the term in
Att-Gen., Federation v. Fafunwa Onikoyi (2007) All
FWLR (pt. 366) 677, 706.
He turned to A.I.C. Ltd v. NNPC (2005) 11 NWLR
(pt. 973) 563, 592 where the Supreme Court
addressed the issue of what constitutes an order of
interim injunction. He submitted that where a
court, acting in accordance with the Supreme Court
authorities in John Holt Nigeria Limited and Anor v.
Holts African Workers Union of Nigeria and
Cameroons (supra); Globe Fishing Industries v.
Coker (supra), orders accelerated trial of the
substantive suit in lieu of an interlocutory
injunction, the rules of the lower court, vide Order
38 Rule 2 (supra) make clear provision for an
interim order.
He took the view that the use of the phrase 'and in
the meantime' in the above rule of the lower court
accommodated an interim preservative order in the
interest of justice. According to him, the clear
intention of the rule was to clothe the lower court
with the power to protect the res in the substantive
suit from being destroyed or frittered away whilst
the trial of the substantive action was being
accelerated. He submitted that to do otherwise
would be to render the trial of the substantive suit
an exercise in futility as the res would have been

26

substantially altered before the substantive matter
was determined. In his view, such course of action
could not be in accordance with the law and runs
foul of the dictates of justice. He submitted that the
lower court had the jurisdiction and power to make
an interim preservative order where it was inclined
towards an accelerated trial of the substantive. In
his view, that was to protect the res and maintain
status quo for the accelerated trial.
He canvassed the view that the appellant in its
brief of argument made heavy weather of the
purport of the dicta of Nnaemeka Agu, JSC in Globe
Fishing Industries v. Coker (supra) 294. He drew
attention to the finding of the lower court at pages
462-463 of the record. He explained that, upon
reaching the above conclusion, the lower court
refrained from making any further consideration of
the respondent's application that would touch on
the issues for trial in the substantive matter in line
with Nnaemeka Agu, JSC's position in Globe Fishing
Industries v. Coker (supra). He observed that,
without first going into the whole merits of the
affidavit or other evidence for the purpose of the
application, and heeding the wise counsel of the
Supreme Court in John Holt Nigeria Limited and
Anor v. Holts African Workers Union of Nigeria and
Cameroons (supra), the lower court relied on
Section 24 of the High Court Law of Lagos State,
Cap H3, Laws of Lagos State of Nigeria, 2003 and
Order 38 Rule 2 (supra) to order as follows:
a. Meeting of parties to prospect settlement.
b. Order of preservation of status quo

27

c. A return date for report of settlement and or for
further directions on accelerated trial.
He submitted that Globe Fishing Industries v Coker
(supra), does not help the argument of the
Appellant. On the contrary, the authority Supports
and fortifies the lower court's decision in this
appeal. He urged the court to so do.
He submitted that it was the clear and
unambiguous provisions of Order 38 rule 2 (supra),
made pursuant to the High Court Law of Lagos
State that granted the lower court the power and
jurisdiction to make an interim preservative order
where it ordered accelerated trial of the substantive
suit. He pointed out that the lower court, in its
ruling relied on Section 24 of the High Court Law of
Lagos State (supra) and Order 25 Rule 1(2) (c) of
the High Court of Lagos State (Civil Procedure)
Rules, 2004, citing page 464 of the record, to order
thus:
The applicant and the respondent shall sit down to
a meeting with their respective counsel with a view
to amicably resolving the disputes between them
and or any legitimate 'concern' of the applicant in
respect of the proposed project of the respondent.
He, further, submitted that the lower court, in its
said ruling, made the preservative order directions
for taking all necessary steps towards completion of
pleadings and identification of issues for
determination, based on the combined provisions of
Order 27 Rule 1 and Order, 28 Rule 2 of the High
Court of Lagos State (Civil Procedure) Rules, 2004,
citing page 466 of the record.

28

He submitted that it was the failure of the appellant
to recognize these distinctions that led it to
formulate issue 2 and the arguments thereon in its
brief of argument which, in his submission, are
most irrelevant and unnecessary in the
determination of the real issue in this appeal. He
urged the court to hold that the provisions of
Section 24 High Court Law of Lagos State (supra)
and Order 38 Rule 2 (supra) contemplate two
distinct outcomes (as was rightly done by the lower
court) to wit, possibility of an amicable settlement
and should that fail, accelerated trial of the
substantive suit, but meanwhile an interim order.
He described the appellant's arguments in
paragraphs 4.45 - 4.49 of its brief of argument on
Order 38 Rule 2 (supra) as not only misconceived
but erroneous. In his view, to adopt that
interpretation of Order 38 rule 2 (supra) would be
to stand the law on its head. He urged the court to
discountenance the argument as it is purely an
exercise in semantics.
He contended that upon the consideration of the
arguments of counsel, the court could reach a
conclusion that the issues in controversy could only
properly be resolved during trial and not otherwise.
He took the view that the expression "upon the
opening of the application' does not mean that the
court would not take arguments of parties before
arriving at its decision which would be so stated in
its ruling.
He submitted that from the arguments canvassed in
this respondent's brief of argument and the

29

authorities relied upon the sole issue in this appeal
'that the lower court has the power and jurisdiction
to make a preservative order where the order is for
a limited and stated time frame and in accordance
with Order 38 Rule 2 (supra), has been successfully
and overwhelming established by the respondent
thus answering the said issue herein in the
affirmative. He urged the court to so hold and
dismiss the appeal.
APPELLANT'S REPLY
In reaction to the respondent's sole issue, counsel
for the appellant in his reply, pointed out that
issues for determination in an appeal must arise
from the grounds of appeal as contained in the
Notice of Appeal filed by the appellant, Ahmed v.
Trade Bank of Nigeria Plc. (1997) 10 NWLR
(pt.524) 290, 296, citing Idika v. Esiri (1988) 2
NWLR (pt. 78) 563, 579 - 580; co-operative and
commerce Bank (Nig) Plc v. Okpara and Anor
(1997) 8 NWLR (pt. 518) 673, 691.
He contended that, by the same token, a
respondent cannot in an appeal, formulate an issue
for determination which does not arise from the
grounds of appeal contained in the Notice of Appeal
of the appellant, First Bank of Nigeria Limited and
Anor v. Owie (1997) 1 NWLR (pt. 484) 744, 752.
He noted that the provisions of Order 6 Rule 4(ii) of
the Court of Appeal Rules, 1981 are in pari materia
with the provisions of Order 18 Rule 4(2) of the
Court of Appeal Rules, 2011.
Still on this point, he referred to Ibator and ors v.
Barakuro and ors [2007] 9 NWLR (pt. 1040) 475,

30

487 where the apex Court dwelt at length on the
propriety of raising issues for determination outside
the appellant's grounds of appeal, citing Eliochin
(Nigeria) Ltd v. Mbadiwe (1986) 1 NWLR (pt. 14)
47; Ogunma Associated Companies (Nigeria) Ltd v.
I.B.W.A. Ltd (1988) 1 NWLR (pt. 73) 658, 681;
Nzekwu v. Nzekwe (1989) 2 NWLR (pt. 104) 373,
430.
He observed that, in the instant appeal, the
respondent neither cross-appealed nor filed a
respondent's notice. He drew attention to the
appellant's Notice of Appeal, pages 468 - 471 of the
record, which contains two grounds of appeal. He
contended from a reading of Ground 1, as
contained in the appellant's Notice of Appeal, pages
469 - 470 of the record, it was clear that the
appellant did not complain of, or challenge the
power of the High Court of Lagos State to make an
interim preservative order pursuant to the
provisions of Order 38 Rule 2 of the High Court of
Lagos State (Civil Procedure) Rules, 2004.
He explained that the appellant's complaint is that
having held that the application of the respondent
for the grant of an order of Interlocutory injunction
was one which could not be made without delving
into the merits of the substantive case, and that
the proper order to make was one accelerating the
trial of the substantive suit as opposed to the grant
of an interlocutory injunction, the lower court could
not, turn around to make interim order of
injunction in the nature of a preservative order. He
maintained that the sole issue which the

31

respondent formulated has no bearing whatsoever
with the grounds of appeal contained in the
Appellant's Notice of Appeal. He submitted that the
respondent was under obligation to formulate
issues which arise from the appellant's grounds of
appeal, pages 468 - 471 of the record. In his view,
the respondent failed to discharge this obligation.
He contended that the proper order to make in the
circumstance is one discountenancing both the
issue so formulated and the arguments made in
support, Adelusola and ors v. Akinde and ors
[2004] 12 NWLR (pt. 887) 295, 311. He urged the
court to discountenance not only the said issue but
also all of the arguments which the respondent
advanced in respect thereof, paragraphs 3.0 to
3.23 of the respondent's brief of argument, pages 5
- 14.
He explained that, in the instant appeal, the
appellant's Ground two complains that the
provisions of Section 24 of the High Court Law of
Lagos State and Order 38 Rule 2 of the High Court
of Lagos State (Civil Procedure) Rule, 2004, do not
clothe the lower court with the power to grant an
interim injunction after having refused to grant the
respondent his application for interlocutory
injunction. He maintained that this complaint of the
appellant is clearly different from the question
whether or not the lower court had the powers to
make a preservative order pursuant to the
provisions of the afore-mentioned law and rules of
Court.
In his view, the distinguishing factor which the

32

respondent has failed to appreciate or deliberately
runs away from admitting, is that in the instant
appeal, the lower court had, prior to making the
order, the subject-matter of this appeal, held that,
in the circumstances of the case before it and the
facts presented to it by both parties in relation to
the respondent's application of October 4, 2010, it
would not be appropriate in law to grant the
respondent's application for interlocutory
injunction, and the appropriate course would be to
accelerate the hearing of the substantive suit.
He canvassed the view that Ground two, from
which issue two was formulated, did not complain
about the power conferred upon the lower court by
the provisions of Section 24 of the High Court of
Lagos State and Order 38 Rule 2 of the High Court
of Lagos State [Civil Procedure] Rules, 2004. On
the contrary the complaint is that such powers
cannot and do not envisage a situation where the
lower Court would decline to enter an interlocutory
order of injunction in favor of a party to a cause
upon the reason that it would not be just and
judicially correct to do so, based upon the facts
presented to it by the parties before it, but then
proceed thereafter in the same ruling to make an
order of injunction.
He noted that the respondent, upon the erroneous
belief that issue two, as formulated by the
appellant, did not arise from the grounds of appeal,
elected not to proffer arguments in respect thereof.
He argued that the respondent is deemed to have
been conceded to the appellant, Okongwu v.

33

N.N.P.C. [1989] 3 NSCC 118, 125.
In reaction to the respondent's counsel's
understanding of the import of Order 38 Rule 2
(supra), he debunked the claim that the phrase
"and in the meantime" is the operative words of the
said Order 38 Rule 2 (supra). In his view, the
operative words are "to make such order as the
justice of the case may require." He urged the court
to avoid such a construction of the said provision
that would lead to absurdity, Kalu v. Odili (1992) 2
NSCC 38 77, citing Minister v. Akpagu (1964) 1 All
NLR 208; Ifezue v. Mbadugha (1984) 1 SCNLR 427.
He adduced reasons why the respondent's
interpretation of the said provision would lead to
absurdity. According to him:
(a) The Legislature could not have intended that
the lower court would still have the powers to grant
an injunction after it had concluded, during the
hearing of the application that the matter could
only be conveniently dealt with by an early trial
without first going into the whole merits on
affidavit, or other evidence.
(b) In other words, once the court found that the
application for injunction could not be judicially and
judiciously determined without dabbling into facts
which were best dealt with at the trial, it should
refrain from granting the injunction.
(c) Clearly, the said provisions never envisaged
that the court would determine certain facts which
were best dealt with at trial. If that be case, upon
what facts would the court then act in order to
judicially and judiciously determine the applicant's

34

application, and proceed to grant an injunction?
(d) Also, the order could not in one breath state
that in the circumstances contemplated under the
provisions of Order 38 Rule 2, the court should
grant an interlocutory injunction, but in another
breath permit the court to grant an interim
injunction. This would be a clear case of
approbation and reprobation.
(e) The respondent's interpretation means that a
court could, having found that an order
accelerating the trial of the cause should be made
in lieu of the grant of an injunction, still proceed to
grant an interim order of injunction and continue to
extend the life of such interim order "as the justice
of the case may require" even up and until the
determination of the substantive suit. That would
be absurd, he observed.
(f) The justice of a case connotes an order which
can be made having regard to the facts of a case
and judicial authorities handed down in relation
thereto. There is no judicial authority in which the
appellate court, having found that an application
for interlocutory injunction could not be granted
without delving into the merits of the case, ordered
accelerated hearing by such reason but then
proceeded to grant an interim injunction.
He posed the question: on what facts did the court
base the grant of the interim injunction when it did
not reach a determination as to any of the facts
presented to it by the parties herein from its own
admission? He urged the court to discountenance
the respondent's interpretation of the said provision

35

as that approach would lead to absurdity. He,
equally, urged the court to disregard the
authorities which the respondent's counsel cited as
they bear no relevance to the appellant's issue for
determination. Above all, the facts of all the said
cases are not, in any way, similar to the facts of the
present appeal, Clement and Anor v. Iwuanyanwu
and Anor [1989] 2 NSCC 241.
RESOLUTION OF THE ISSUES
By their very nature, the two issues which the
appellant set out for the determination of its appeal
are, inextricably, intertwined. For convenience, we
shall deal with both of them together. As counsel
for the appellant explained, this appeal is not a
challenge to the lower court's consideration of the
principles or conditions for the grant of an
injunctive order. The lower court conceded that it
did not give any consideration to these principles or
conditions. To that extent, we shall not dissipate
energy on them for they are well-illustrated in case
law, Onyesoh v. Nnebedum and ors (1992) LPELR -
SC.276/1989; Saraki v. Kotoye [1990] 4 NWLR (pt
143) 144; Kotoye v. CBN (1989) 1 NWLR (pt 98)
419; Akinpelu v. Adegbore and ors (2008) LPELR-
SC.130/2007; Orji v. Zaria Industries Ltd and Anor
(1992) LPELR-SC.240/1989; Gov of Imo State v.
Anosike (1987) 4 NWLR (Pt. 66) 663; Ezeokafor v.
Ezeilo (1999) LPELR-SC.309/1989 etc. Obeya
Memorial Hospital v. AG, Federation [1987] 3
NWLR (pt 60) 325; Ojukwu v. Governor of Lagos
State (1986) 3 NWLR (pt 36) 39.
In actual fact, this appeal falls within a very

36

compass, namely, the propriety of the decision of
the lower court which granted a preservative order
of injunction after having held that it could not
determine the respondent's application for the
grant of an interlocutory injunction without delving
into issues to be determined at trial, pages
462-464. It concluded inter alia that "it is in the
view of this court not possible to resolve these
issues without delving into the merits of the case.
These particular questions can be answered only
upon conclusion of trial," [page 463 of the record].
In our humble view, the key to the resolution of
the hermeneutic question posed by the divergent
submissions of counsel of the parties in this appeal
lies in the decodation of the true juridical character
of the relief which the respondent [as applicant]
sought from the lower court on October 4, 2010
and the character of the preservative order which
eventuated from the court's said ruling. It would, in
our view, be unsafe to proceed with this judgment,
without resolving this heady question. To do
otherwise would be like embarking on a journey
without maps or, in a more homely metaphor,
navigating uncharted jurisprudential waters,
without navigational aids.
As noted above, the parties ventilated their
respective positions. The court adjourned for its
ruling. In its said ruling, it made orders in the
following terms:
Order of preservation of status quo be and is
hereby made to the effect that all civil engineering
works in respect of the project proposed by the

37

respondent at 142, Ahmadu Bello Way, Victoria
Island, Lagos, shall cease forthwith until the next
date of adjournment.
(pages 459- 467 of the record)
In essence, the above relief which the respondent
sought in its application of October 4, 2010 and the
preservative order of the court made on November
24, 2010, sound in equity. True, indeed, the
respondent's application of October 4, 2010 was a
double-barreled application for quia timet
injunction and interlocutory injunction rolled up
into one application. It was framed thus:
An order of interlocutory injunction, restraining the
quia timet, from doing whether by himself or by his
agents or servants or otherwise howsoever, from
commencing with the construction of the proposed
14 storey building and 5 level car park on the
premises known and situate at No 142 Ahmadu
Bello Way, Victoria Island, Lagos, and also known
as Plot 141 Elias Close, Victoria Island, Lagos,
pending the determination of the suit
(Pages 203-239 of the record)
As such, they were caught by the well-known canon
that the award of equitable remedies is, entirely, at
the discretion of the court, which discretion must
be exercised judiciously and judicially and in
accordance with settled rules and principles, Gaje
and Ors v. Paye (2003) LPELR-SC.40/99, at page
23 D-F; Spry, Equitable Remedies (4th edition)
430; M. I. Jegede, Principles of Equity (Lagos: MIJ
professional publishers, 2001) 75 et seq; N. Tobi,
The Law of Interim Injunction in Nigeria (Ibadan:

38

St Paul's Publishing House, 2006) passim; A.
Babalola, Injunctions and Enforcement of Orders
(Ibadan: Intec Ltd, 2007) passim.
This somewhat inflexible rule finds anchorage in
the very nature of judicial discretion, which is the
court's epistemological tool for winnowing solid
truth from windy falsehood; for dichotomizing
between shadow and substance and distilling equity
from colourable glosses and pretences. By its very
character, judicial discretion does not brook any
capricious exercise of power according to private
fancies and affections. We find support for this
opinion in Rook's case (1598) 5 Co. Rep. 996, cited
in Ayantuyi v. Governor of Ondo (2005) 14 W R N
67, 91.

In passing, we note that Equity, like an immaculate
garment, abhors the company of those who are
either likely to contaminate its majesty; taint its
purity or dampen its allure! Above all, since she
does not trade on detergents, those who approach
her hallowed portals are forewarned to denude
their hands of all dirt and appear with
unimpeachable allegations!
Having said that, we think it is necessary to set out
the sequence of events that culminated in the
preservative order, the cassus belli in this appeal.
The respondent [as applicant] beseeched the lower
court with an application filed on October 4, 2010,
which we had, already, set out above. The lower
court heard the arguments of counsel. It reserved
its ruling. In its ruling of November 24, 2010, it

39

observed, inter alia, [pages 462-464 of the record]
"The addresses of both parties were indeed
scholastic thesis (sic) on the subject of
interlocutory injunction and nuisance. In the view
of this court both addresses went beyond the
demands of this application...This court will not go
the way of the parties by slipping into the merits of
this case as they have done....It is in the view of
this court not possible to resolve these issues
without delving into the merits of the case..."
It prayed in aid Globe Fishing Industries v. Coker
(1990) 7 NWLR (Pt 162) 265, 294 in support of the
position that, confronted with a situation where it
may be tempted to "try the issues in contention
twice, first while considering the application for
interlocutory injunction and second during trial...,"
that the proper approach would be to stop hearing
the application and accelerate the hearing. It,
consequently, ordered that the hearing of the
matter be accelerated.
It would appear that the lower court misconceived
the import of the beneficent reasoning in Globe
Fishing Industries v. Coker (supra). As shown
above, in the application that culminated to this
appeal, the parties had ventilated their agitations
for and against the entitlement of the applicant to
the relief claimed in the said motion of October 4,
2010 through their addresses. The court adjourned
to consider the submissions and, ultimately, resolve
the question of the applicant's entitlement to the
said relief. In its ruling, it declined to pronounce on
the merits of the application because, as it found, it

40

was "not possible to resolve these issues without
delving into the merits of the case," (pages
462-464 of the record). Consistent with the
prescription in Globe Fishing Industries v. Coker
(supra), it ordered the accelerated hearing of the
matter.
The only aspect of the ruling which the appellant
found revolting was the preservative order made
subsequent to the order of the accelerated hearing
of the case. Naturally, the respondent's counsel had
no grievance against the preservative order. In
support of the said order, he made a submission
which, with due respect, stood the compelling logic
of the reasoning of the apex court on its head. He
submitted that when a court is faced with an
application for Interlocutory Injunction, it has the
power to order an accelerated trial in lieu of
Interlocutory Injunction, and meanwhile make an
order of Interim Injunction, citing John Holt Nigeria
Limited and Anor v. Holts African workers Union of
Nigeria and Cameroons (supra) ; Globe Fishing
Industries v. Coker (supra); 7 - Up
Bottling Company Limited and ors v. Abiola and
Sons Nigeria Limited (supra).
With respect, this submission would, no doubt,
seem to be a distortion of the rationale of the
decision of the apex court. For example, in Kotoye
v. CBN (supra), Nnaemeka-Agu JSC made an
important clarification on when a court could order
an interim injunction. At page 442 of the report,
the distinguished jurist (now, of the Blessed
Memory), in his characteristic methodical manner,

41

intoned that: Interim injunctions ..., while often
showing the trammels of the orders of injunctions
made ex parte are not necessarily conterminous
with them. Their main feature which distinguishes
them from interlocutory injunctions is that they are
made to preserve the status quo until a named date
or until further order or until an application on
notice can be heard. They are also for cases of real
urgency. But unlike ex parte orders for injunction,
they can be made during the hearing of a motion
on notice for interlocutory injunction when,
because of the length of the hearing, it is shown
that an irretrievable mischief or damage may be
occasioned before the completion of hearing. Also it
can be made to avoid such an irretrievable mischief
or damage when due to the pressure of business of
the court or through no fault of the applicant it is
impossible to hear and determine the application on
notice for interlocutory injunction, see, Basse v.
Woodhouse (1970) 1 WLR 586 at page 590. It must
however be emphasized that what the court does in
such a case is not to hear the application for
interlocutory injunction ex parte behind of the
respondent but to make an order which has the
effect of preserving the status quo until the
application for interlocutory injunction can be heard
and determined.
(Italics supplied)
However, that was not what happened in the
application leading to this appeal. As noted above,
the lower court, actually, heard the application for
interlocutory injunction. It adjourned for ruling. It

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was in the course of the said ruling that it
discovered that it was "not possible to resolve these
issues without delving into the merits of the
case..." It, thus, ordered an accelerated hearing of
the case. In Onyesoh v. Nnebedum (supra),
Nnaemeka-Agu JSC explained further that "[t] he
better view is, therefore, that whenever it is
possible to accelerate the hearing instead of wading
through massive affidavits and hearing lengthy
argument on interlocutory injunction, the court
should accelerate the hearing and decide finally on
the rights of the parties," citing John Holt Nig Ltd v.
Holt African Workers Union of Nigeria and
Cameroon (supra); Civil Service Union v. Essien
(1985) 3 NWLR (pt 12) 306. However, the lower
court did the exact opposite. It heard lengthy
addresses: addresses which it described as
"scholastic thesis (sic) on the subject of
interlocutory injunction..." (page 462-464 of the
record). It was when it found to its chagrin that it
was "not possible to resolve these issues [in the
addresses] without delving into the merits of the
case" that it resorted to what Nnaemeka-Agu JSC
prescribed as the better view in Onyesoh v.
Nnebedum (supra), namely, to accelerate the
hearing of the case.
It is against this background that we endorse the
contention of counsel for the appellant that the
decision is not in consonance with the reasoning of
the apex court in Globe Fishing Industries Ltd and
ors v Coker (supra). Indeed, in 7-UP Bottling
Company Limited and ors v. Abiola and Sons

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Nigeria Limited (supra), after adumbrating the clear
distinction between interim and interlocutory
injunctions, Adio JSC proceeded thus at pages 276
- 277:
It is the extent to which a court can go, if at all, in
the determination of contentious issues in the case
when an application for an order of interim
injunction or for an order of interlocutory
injunction comes before it that constitutes one of
the significant or decisive factors in the
determination of whether all or any of them can be
granted without hearing the other party or parties
to the case in accordance with the provision of
Section 33(1) of the Constitution.
In all, we take the view that, in the exercise of its
discretion, the lower court acted on the wrong
principles. We, therefore, have no hesitation is
interfering with that exercise, Ntikidem v. Asuquo
Oke (1986) 5 NWLR (pt 45) 909; Atanda and Ors v.
Olarenwaju and Ors (1988) 4 NWLR (pt 89) 394,
397; Onyesoh v. Nnebedum (supra); Ogolo v.
Ogolo (supra); Adejumo v. Ayantegbe (1989) 3
NWLR (pt 110) 417, 445.
We, therefore, resolve the first issue in favour of
the appellant. With regard to the second issue, we,
entirely, endorse the submission of appellant's
counsel that the issue which the respondent
concreted for the determination of this appeal did
not arise from the appellant's grounds of appeal,
Ahmed v. Trade Bank of Nigeria Plc (1997) 10
NWLR (pt.524) 290, 296, citing Ipika v. Esiri
(1988) 2 NWLR (pt. 78) 563, 579 -580;

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Co-Operative and Commerce Bank (Nig) Plc v.
Okpara and Anor [1997] 8 NWLR (pt. 518) 673,
691; First Bank of Nigeria Limited and Anor v. Owie
(1997) 1 NWLR (pt. 484) 744, 752; Ibator and Ors
v. Barakuro and Ors (2007) 9 NWLR (pt. 1040)
475, 487; Eliochin (Nigeria) Ltd v. Mbadiwe (1986)
1 NWLR [Pt. 14] 47; Oguma Associated Companies
(Nigeria) Ltd v. I.B.W.A. Ltd (1988) 1 NWLR (pt.
73) 658, 681; Nzekwu v. Nzekwe (1989) 2 NWLR
(pt.104) 373, 430.
Even then, an exegesis of Order 38 Rules 2 of the
High Court Rules (supra) would reveal its
provenance. It provides-
Whenever an application shall be made before trial
for an injunction or other and on the opening of
such application, or at any time during the hearing
thereof, it shall appear to the Judge that the matter
in controversy in the cause or matter is one which
can be most conveniently dealt with by an early
trial, without first going into the whole merits on
affidavit or other evidence for the purposes of the
application, it shall be lawful for the Judge to make
an order for such trial accordingly and in the
meantime to make such order as the justice may
require."
The subordinate clause "without first going into the
whole merits on affidavit or other evidence for the
purposes of the application..." reveals the drafts
person's acquaintance with the extant
jurisprudence on injunctive orders. Indeed, the
above normative prescription would appear to have
been drawn, largely, from the rigorous reasoning in

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John Holt Nigeria Limited and Anor v. Holts African
workers Union of Nigeria and Cameroons (supra);
Globe Fishing Industries v. Coker (supra); 7 - Up
Bottling Company Limited and ors v. Abiola and
Sons Nigeria Limited (supra).
Contrary to the submission of the respondent's
counsel on the import of the above provision of the
High Court Rules and Section 24 of the High Court
Law, we take the view that the question here is not
the power of the preservation of the res. As Eso
JSC noted in Kigo (Nig) Ltd v. Holman Bros (Nig)
Ltd (1980) 5-7 SC 60, "it is incontestable that all
courts of record possess powers of preservation of
the res in their custody.... But the issue seems
to...be to what extent, if any, is this expansive
jurisdiction...procedurally circumscribed by the
operation of the Rule of court..." also, per Achike
JSC in Ezeokafor v. Ezeilo (1999) LPELR-
SC.309/1989; see, also, 7-Up Bottling Company
Limited and ors v. Abiola and Sons Nigeria Limited
(supra) pages 276 - 277. Against this background,
we hold that Order 32 Rule 2 (supra) and Section
24 of the High Court law (supra) did not clothe the
lower court with the jurisdiction to decree a
preservative order after it had concluded that it
could not wade through the welter of affidavits
without dabbling into the merits of the case. We,
equally, resolve this issue in favour of the
appellant.
Having resolved the two issues in favour of the
appellant, we have no hesitation in allowing this
appeal. Appeal allowed. We hereby enter an order

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setting aside the said ruling of Olateru-Olagbegi J.
made on November 24, 2010 and dissolve the
interim order which it granted in the said ruling.
We award costs in favour of the appellant which we
assess and fix at N30,000.

AMINA ADAMU AUGIE, J.C.A.: I read in draft the
lead Judgment delivered by my learned brother,
Nweze, JCA, and I agree with him that the decision
of the lower Court must be set aside.
He addressed the issue at stake squarely, and I will
say a few words on the Respondent's argument that
a Court can order an accelerated hearing in lieu of
an interlocutory injunction and also make an order
of interim injunction. This line of argument is
completely out of tune with the law because there
is a difference between Interim and Interlocutory
Injunction - see Kotoye V. CBN & Ors. (1989) 1
NWLR (Pt. 98) 419 SC, where Karibi-Whyte, JSC,
explained - "It is useful to examine the meaning
and scope of the words "interlocutory" and
"interim, which have been used very freely and
often times regarded as interchangeable in
applications for injunctions ... An interlocutory
application is an application, which can be made in
the course of a proceeding, and at any stage of a
cause or matter, for the purpose of keeping the
parties in status quo till the determination of the
action ... The word "interim" used also in
applications ad orders of injunction for maintaining
the status quo of parties to a suit means

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"temporary" "in the meantime". However, an
injunction described as interim falls within the
above definition and is an interlocutory injunction
because it is an application made in the course of
the proceedings. But unlike an interlocutory
injunction properly so-called, an interim injunction
is NOT one granted till the determination of the
suit. It is an injunction made until a named date or
until further order or until an application on notice
can be heard. Thus, they bear all the features and
trappings of an interlocutory injunction and granted
upon the same consideration of equity. Interim
orders for injunction can be made pending motion
on notice of an interlocutory injunction where
applicant is able to show that irretrievable damage
may be done before the completion of the hearing
of the Application - -. An interim injunction is
intended to be temporary in its character and any
person at whose suit such an injunction is obtained,
is under an obligation to limit, as far as possible,
the time during which it is operative - -. In such a
case, the Court makes an order to preserve the
status quo until the application for interlocutory
injunction can be heard and determined".
The above explanation speaks for itself, and the
end result is that I also allow the appeal, and I
abide by the consequential orders in the lead
judgment.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read
before now the judgment just delivered by my

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learned brother, C. C. NWEZE JCA. I agree with his
reasoning and conclusions. He has dealt fully and
comprehensively with all the issues raised in the
appeal. It is indeed incomprehensible that after the
learned trial Judge had spent precious hours
hearing the various applications, all centered on
whether or not to grant interlocutory injunction
restraining the Appellants from commencing the
construction works; writing a considered ruling
stating that it was not possible to resolve the issues
without delving into the merits of the substantive
suit and instead granting accelerated hearing of the
suit; to make a volte-face and grant an order of
preservation of the status quo to the effect that all
building and civil engineering work shall cease
forthwith until the next date of adjournment.
The procedure clearly flies in the face of well laid
down principles of law on interlocutory injunctions
as set out in the myriad of cases cited in the lead
judgment. I wonder what would have happened on
the next adjourned date. Would his Lordship have
discharged the preservative order or extended it? I
suppose we would not now know as the Appellant
quickly on good counsel and as allowed by the laws
of the land came to us for succor. He acted
correctly and timely. I agree that the appeal has
merit and should be allowed. I too hereby allow the
appeal. I abide by the consequential orders in the
lead judgment including the order as to costs.

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