THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)

Background

The appellant, The Registered Trustees of the Presbyterian Church of Nigeria, commenced proceedings at the High Court of Cross River State, Calabar, concerning a parcel of land known as No. 18, Big Qua Town Road, Calabar. It sought a declaration that it was entitled to a statutory right of occupancy over the land, a perpetual injunction restraining John Asuquo Etim, his servants, agents and workmen from trespassing or continuing construction on the property, and damages for trespass.

Alongside the writ of summons, the appellant filed both a motion ex-parte for an interim injunction and a motion on notice for an interlocutory injunction. Although an affidavit of urgency was filed, the trial judge declined to determine the ex-parte application and directed that the respondent be put on notice. The relevant court processes, including the motion on notice, were served on the respondent on 14 December 2000. The respondent subsequently filed a memorandum of appearance on 18 December 2000, but did not file a counter-affidavit opposing the interlocutory injunction.

On 19 December 2000, the date fixed for hearing, the respondent and his counsel were absent. The trial judge was satisfied, on the basis of an affidavit of service sworn by the chief bailiff, that the respondent had been duly served. She therefore heard the motion on notice and granted an interlocutory injunction restraining the respondent from erecting or continuing any construction on the disputed land pending determination of the substantive action.

The respondent appealed. The Court of Appeal allowed the appeal and discharged the injunction, reasoning that the trial court had breached the respondent’s constitutional right to fair hearing and had effectively heard the application ex-parte. It also held that the trial judge ought to have considered a letter allegedly sent by the respondent’s counsel to the registrar requesting an adjournment. The Presbyterian Church appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal was right to hold that the trial court breached the respondent’s right to fair hearing by granting the interlocutory injunction in his absence.
2. Whether the Court of Appeal correctly found that the trial judge acted injudiciously by refusing or failing to grant an adjournment, particularly when there was allegedly no formal application for adjournment before the trial court.
3. Whether the motion determined by the trial court was an ex-parte motion or a motion on notice duly served on the respondent.

Ratio Decidendi

The Supreme Court held that the motion determined by the trial court was a motion on notice, not an ex-parte motion. A motion on notice is one by which the opposing party is informed of the application and given an opportunity to respond. An ex-parte motion is used where, for cogent reasons, notice cannot or should not be given. The trial judge had expressly declined to hear the ex-parte motion and had directed the appellant to serve the respondent. That direction was obeyed.

The Court further held that proof of service is the essential requirement where the rules prescribe service of process. Under Order 9 rule 17 of the High Court of Cross River State Rules, service could be established by an affidavit of service, certificate of service, certificate of posting or other recognised evidence. The affidavit of service sworn by the chief bailiff was prima facie evidence that the respondent had been served. The trial judge was entitled to rely on it.

Fair hearing under section 36(1) of the 1999 Constitution requires a party to be given a reasonable opportunity to present his case. It does not require a court to compel a party to use that opportunity. Once a party has been duly served and fails to attend, file a counter-affidavit or otherwise indicate an intention to contest the application, that party cannot ordinarily complain that he was denied fair hearing. The constitutional guarantee is substantive and impartial; it is not a device for rewarding procedural default or delaying proceedings.

On adjournment, the Court held that an adjournment is discretionary and is not automatic. The discretion must be exercised judicially and judiciously, but it can arise only where a proper application is actually placed before the court. The letter allegedly requesting an adjournment was not shown to have been formally filed, acknowledged by the registry, served on the appellant or brought to the attention of the trial judge before the motion was heard. Under Order 54 rule 6 of the Cross River State High Court Civil Procedure Rules, documents intended to be acted upon by the court had to satisfy the requirements for filing. The letter therefore had no demonstrated legal status before the trial court and could not support the Court of Appeal’s conclusion.

Court Findings

The Supreme Court found that the Court of Appeal misunderstood the record and wrongly treated the interlocutory injunction as having been granted behind the respondent’s back. The respondent had been served five days before the hearing, had entered appearance in the substantive suit, and had not filed any counter-affidavit to oppose the injunction. His counsel’s absence on the hearing date did not convert a duly served motion on notice into an ex-parte proceeding.

The Court also rejected the contention that 15 December 2000 was a public holiday, observing that it was a Friday and that no evidence established it as a declared public holiday. The respondent consequently had a meaningful opportunity to prepare and respond. The urgency of the injunction was also connected with allegations that construction was progressing rapidly on the disputed land. The trial judge was entitled to prevent the situation from becoming irreversible.

Conclusion

The appeal was allowed unanimously. The judgment of the Court of Appeal, which had discharged the interlocutory injunction, was set aside. The ruling of the High Court of Cross River State made on 19 December 2000, restraining the respondent from constructing on the disputed land pending determination of the substantive suit, was restored. The respondent was ordered to pay N100,000 in costs to the appellant.

Significance

The decision confirms that fair hearing means a genuine opportunity to be heard, not an entitlement to delay a duly served application until the respondent chooses to participate. It also clarifies the procedural distinction between interim and interlocutory injunctions and emphasises that an interlocutory injunction may be determined in the absence of a respondent who was properly served but failed to attend or file opposition. The judgment further stresses the importance of formal filing: correspondence sent to a registrar or court registry is not necessarily a legal document before the judge and cannot automatically amount to an application for adjournment. Finally, the case demonstrates that appellate courts must carefully examine the record before concluding that a trial court acted in breach of fair hearing.