AZUH V. U. B. N. PLC (2014)

Background

This appeal concerned the propriety of ex parte interim injunctions obtained by Union Bank of Nigeria Plc against Lawrence S. U. Azuh, its former Branch Manager at Asaba, Delta State. The bank alleged that a sum exceeding N89,958,931.46 was missing from its Asaba branch and reported the matter to the police. Following investigation, the appellant and six other persons were charged before the Chief Magistrates’ Court 1, Asaba, in charge No. CMA/250C/2001 for stealing. The appellant was subsequently granted bail by High Court No. 5, Asaba.

After the grant of bail, the bank commenced Suit No. A/188/2001 at another division of the Delta State High Court. Rather than seeking recovery of the allegedly missing funds in that civil action, the bank sought declarations and injunctive orders requiring the appellant to remain in Nigeria until the criminal proceedings were concluded. It also sought an order directing the court sheriff to seize the appellant’s passport and an order compelling the Nigerian Immigration Service not to permit him to travel abroad. The bank filed a motion ex parte seeking substantially the same interim reliefs.

The High Court granted the ex parte orders on 20 November 2001. The record did not show that the promised motion on notice was ever filed. The appellant appealed to the Court of Appeal, Benin Division, but that court dismissed the appeal on 25 March 2004. He then appealed to the Supreme Court.

Issues

1. Whether the High Court had jurisdiction to grant the interim orders of injunction against the appellant, particularly where the orders effectively restricted his movement and altered the practical effect of bail granted by another High Court judge.
2. Whether the respondent established a proper case for the grant of interim injunctive relief.

Ratio Decidendi

The Supreme Court unanimously allowed the appeal. Kekere-Ekun JSC, delivering the lead judgment, held that an ex parte interim injunction is an exceptional remedy designed to preserve the status quo for a short and defined period, ordinarily until a motion on notice can be heard. It is justified only by real urgency and the risk that delay would cause irretrievable or serious mischief. An applicant seeking an interim order ex parte while also seeking an interlocutory injunction must ordinarily file two applications simultaneously: the ex parte application and a motion on notice. The bank had not demonstrated that a motion on notice was filed, and the High Court’s order was not directed toward preserving any existing civil right or subject matter in litigation.

The Court further held that one judge of a court cannot sit on appeal over, vary or contradict an order made by another judge of coordinate jurisdiction, except pursuant to statutory authority or where the earlier order is a nullity. Since High Court No. 5 had granted bail, any application to vary or strengthen the bail conditions had to be made by the prosecution before the court that granted bail, or pursued through the appropriate appellate process. The civil suit could not be used as an indirect mechanism for reviewing or modifying that bail order.

Court Findings

The Supreme Court found that the bank, although the complainant and alleged victim of the offence, did not control the criminal proceedings. Under sections 174 and 211 of the 1999 Constitution, the power to institute criminal proceedings belongs to the Attorney-General, subject to lawful delegation. Proceedings before a Magistrates’ Court may ordinarily be initiated and prosecuted by the police under section 23 of the Police Act and the relevant constitutional provisions. The bank therefore lacked authority to invoke a civil action to take over the management of the pending criminal charge or to obtain restrictions that ought to be sought by the prosecution.

The Court recognised that an accused person’s freedom of movement may, in an appropriate case, be restricted by the court handling the criminal proceedings or by a superior court. However, such a restriction must be lawfully imposed and cannot be achieved through an improperly framed civil action or an ex parte order whose real purpose is to vary existing bail conditions. The orders also affected the constitutional right to freedom of movement protected by section 41(1) of the Constitution.

As to the Nigerian Immigration Service, the Court distinguished between non-joinder and an order directed against a non-party. Non-joinder of a necessary party generally does not deprive a court of jurisdiction, but an order made against a person who was not joined and was not given an opportunity to be heard is of no avail and is not binding on that person. Although the appellant could not complain on behalf of the Immigration Service solely because it was not joined, he had standing to challenge the order because its enforcement directly interfered with his own freedom of movement.

Conclusion

The Supreme Court set aside the judgment of the Court of Appeal and the ex parte interim injunction granted by the High Court on 20 November 2001. It struck out the entire Suit No. A/188/2001. The second issue, concerning whether the bank had established sufficient grounds for the injunction, was treated as academic after the Court resolved the jurisdictional issue in the appellant’s favour. Each party was ordered to bear its own costs.

Significance

The decision emphasises that interim injunctions must remain genuinely temporary, urgent and connected to a pending action involving an identifiable right or subject matter. It prevents litigants from using civil proceedings to circumvent criminal procedure, interfere with bail, or impose restrictions on an accused person that should be considered by the criminal court or the prosecution. The case also reinforces judicial discipline: courts of coordinate jurisdiction must not contradict or revise one another’s orders. Finally, it demonstrates that constitutional rights, especially freedom of movement, cannot be curtailed by procedural subterfuge or by an order made against a non-party without due process.