Alhaji L.A. Gbadamosi & Ors V. Chief Stephen I. Alete & Anor (1992)
LawGlobal-Hub Lead Judgment Report
NDOMA-EGBA, J.C.A.
The consequential order complained of by the appellants herein arose from an application on Notice filed by the defendants in a pending and related suit in the Federal High Court, Port Harcourt. The 1st plaintiff/respondent on record sought in the suit aforementioned a declaration that he (1st plaintiff/respondent) is still the chairman of the 5th defendant company and chairman of its Board of Directors. He added in the said suit a prayer for nullification of a number of resolutions and decisions of the 5th defendant company on the grounds that these were taken ultra vires. A number of other reliefs mentioned in the printed record were also claimed. In course of hearing the suit aforesaid, the appellants herein brought a motion which, apparently, is interlocutory but in effect, mandatory. They solemnly asked for a stay of proceedings in the main suit and an order prohibiting the respondents from implementing the resolution and orders purportedly taken by the 5th appellant company, Ace Toys and Plastics (Nigeria) Limited. The latter was subsequently struck out from the actual suit. Its Managing Director Edet U. Okokon, was however joined to the suit, as it appears, in his personal capacity:
As a result of the joinder and elimination of the parties as aforesaid, the appellants amended their particulars of claim. This amendment was reflected in a fresh application for an interlocutory injunction granted by the court on the 18th of February, 1991.
Dissatisfied by the decision aforementioned, the applicants appealed to this Court (Appeal Court) which appeal is entered and pending for determination.
The Writ of summons upon which the three injunctions were claimed was filed by the respondents. Chief Stephen Ikpoku Alete and others on the 17th of September, 1990.
In reaction to the foregoing, the defendants/respondents on record brought an application on Notice to restrain plaintiffs/appellants from giving effect to a number of resolutions passed by them on the 16th of August, 1990 on behalf of the Board of Directors of the 5th appellant company, Ace Toys and Plastic (Nigeria) Limited.
By a reserved ruling dated 27th day of May. 1991 the learned trial Judge presiding at the Federal High Court,Port Harcourt allowed a stay of further proceedings in the substantive suit awaiting the determination of the appeal filed against the ruling of the court delivered on the 18th of February, 1991. The prayer seeking a stay of the implementation/execution of the Order contained in the ruling dated 18th February 1991 pending the decision of the appeal filed against it was refused.
The learned trial Judge on his own volition decreed:
“The Executive Chairman (the 1st respondent) and the General Manager (the 4th applicant) shall be and are hereby appointed to jointly take charge of the management of the financial affairs of the 5th applicant company with immediate effect and for this purpose, one shall not spend any of the money or moneys of the company without the concurrence of the other pending the determination of the appeal mentioned in (1) and (2) above; so however that none of them shall unreasonably withhold his assent or concurrence to any expenditure.”
He commented during the ruling:
“ln essence the Chairman and the Managing Director or where there is no Managing Director, the General Manager, are the two principal officers that run a company. In other words, they are the officers responsible for the day to-day management of the affairs of the company. In the peculiar circumstances of this case and to resolve the impasse created by the present situation in the 5th applicant company. I think an order that the Executive Chairman (the 1st respondent) and the General Manager (the 4th applicant) shall be jointly responsible for the management of the financial affairs of the 5th applicant company will solve the impasse. To this end, I will order that one shall not spend the funds of the company without the concurrence of the other pending the final determination of the substantive suit. The two of them and indeed all the directors and shareholders should learn to work together.”
Aggrieved by the order/decision aforesaid and with leave granted on the 18th October, 1991, appellants appealed upon the grounds set out verbatim hereunder:
“3. Ground of Appeal
The learned trial Judge erred in law and acted without jurisdiction when he made a ‘consequential order’ in the terms set out below after refusing the defendants/applicants application for a stay of execution of the learned trial Judge’s order dated 18th February, 1991; “The Executive Chairman (the 1st respondent) and the General Manager (the 4th applicant) shall be and are hereby appointed to jointly take charge of the management of the financial affairs of the 5th applicant company with immediate effect and for this purpose, one shall not spend any of the money or moneys of the company without the concurrence of the other pending the determination of the appeal mentioned in (1) and (2) above, so however that none of them shall unreasonably withhold his assent or concurrence to any expenditure’,
Particulars of Error in law
(a) The consequential order was not asked for by the 1st plaintiff.
(b) The court below was wrong in raising an issue for the parties and making an order in respect of the issue without inviting counsel on both sides to address it on the issue.
(c) By making the consequential order without hearing the defendants, particularly the 5th defendant, the learned trial Judge breached the defendants’ right to fair hearing as guaranteed by Section 33 of the 1979 Constitution.
(d) The consequential order amounts to a recognition of and/or imposition of the 1st plaintiff as the Executive Chairman of the 5th defendant company on the defendants, which status is one of the unresolved live issues in the substantive suit before the court below.
(e) The consequential order was an arbitrary judicial imposition not having been asked for or warranted in any respect.”
The relief sought on appeal is to set aside the order referred to above as a consequential order made by the court below and dated the 27th day of May, 1991.
The enrolled order complained of, was made in the hand of the learned trial Judge, Ojutalayo J. It is reproduced and attached to the assembled records of the appeal as Exhibit “A”.
In accordance with the provisions of Sections 16 and 18 of the Court of Appeal Act, 1976 and by the inherent power of the Court, the appellants on an affidavit of urgency, filed a motion Ex-parte for an interim stay of further implementation/ execution of the consequential order appealed from pending the determination of a motion on Notice dated 22nd October, 1991. The grounds for the relief sought therein are these:
“(a) The hearing of the Motion on Notice praying for the same relief has been fixed on 9th January, 1992.
(b) The 1st respondent’s implementation of the consequential order through a repeated withholding of his concurrence to the payment of workers’ salaries/wages, procurement of raw materials/spare-parts, payment of electricity/telephone/medical bills etc., has adversely affected the operations of the company. (c)The issue of the joint financial management of the affairs of the 5th appellant/applicant company was raised suo motu by the court below which proceeded to make a binding consequential order on the issue without hearing the parties to be affected by the order.
(d) To reduce the loss occasioned by the 1st respondent’s continued refusal to give his concurrence to proposed expenses, there is an urgent need to apply for this interim order pending the hearing of the Motion on Notice fixed on the 9th January, 1992.”
The motion as it appears was granted.
The foregoing provides in outline, I think, the background for dear grasp of the primary issue to be decided in the instant appeal.
Pursuant to the Rules of this court, briefs were exchanged.
In the appellants brief prepared and presented by Ben O. Nwogu Esq.,a single issue was formulated and set forth for determination. It reads:
“whether in the circumstances of this case the lower court was right to isolate and raise an issue of financial management of the 5th appellant (company) suo motu and proceed to make a binding consequential order against the appellants without the parties (especially those to be affected by it) to address it on the propriety of making such far reaching order.”
O.C.J. Okocha Esq for the respondents identified in a lucidly written brief of the same issue for settlement though expressed in different words thus:
“Whether in the circumstances of this case, the lower court was right to have made the order described as a “consequential order?” This is comprehensive. This appeal would therefore be considered with reference to it.
Relying on the definition of consequential order per Nnaemeka-Agu, J.S.C. in F.A. Akinbobola & Another v. Plisson Fisko (Nig) Ltd & Others(1991) 1 NWLR (Pt. 167) 270 at 288, paragraphs B-D. Learned counsel for the appellants, B.O. Nwogu Esq., recognised and allowed that the court below could make a consequential order provided it is made in “appropriate cases”. He argues further that the consequential order was irrelevant to the main case. It had no bearing to the management of the financial affairs of the 5th appellant company. It related to the injunctive relief granted by the lower court in regard to the resolutions made by the Directors of the 5th appellant company. This, Mr. Nwogu continued, affected the claim of the 1st defendant as Executive Chairman and his resultant removal from the position. To use counsel’s words, the order was not “one flowing directly or naturally or inevitably consequent upon injunction or its stay as desired”. He described the order as unfair and “a judicial re-writing of the Memorandum and Articles of Association of the 5th appellant company” and was made in detriment to its members and Directors.
Learned counsel mentioned that the criminal aspect of the case was being investigated by the police and that the learned trial Judge speculated on the outcome in respect of the said consequential order. He cited the decision in Obayagbona v. Obazee (1972) 5 S.C. 247, the relevance of which would be examined.
Mr. Nwogu adopted appellants’ brief of argument at the hearing of the appeal and emphasized the submission made therein. He cited the judgments in A,C.B. v. Losada (1992) 2 NWLR (Pt.225) 572 at 588, and Onwuka Hi-Tek v.Icon Limited (1992) 2 NWLR (Pt.226) 733 at 745, paragraphs B-E. He argued further that appellants were not heard before the consequential order was made. He reminded us that the instant appeal involves an interlocutory decision. The real appeal is pending.
O.C.J. Okocha Esq, for the respondents agrees with Mr. Nwogu on the definition and scope of a “consequential order”. Its range and relevance to the facts of the present appeal would be expatiated upon later. He also cited Akinbobola v. Plisson Fisko, (supra) per Sowemimo, J.S.C.
Opposing the appeal,Mr. Okocha admits that a consequential order need not be claimed but can be justifiably made “If the facts and circumstances of the case warrants it”. Learned counsel reviewed a number of statutes and rules of the Federal High Court and of this Court to explain the nature of a consequential order. These appeared helpful to the appellants’ position. He addressed the court at length on the circumstances in which interlocutory injunctions may suitably be granted but omitted to go to the point on the issue for resolution.
Learned counsel in the relevant brief of argument fully surveyed the affidavit evidence and dealt with the recorded evidence in the substantive suit. In conclusion and on the authority in Okoyo & others v. Santilli & others ( 1990) 2 NWLR (Pt.131) 172. Mr. Okocha submitted that the learned trial Judge validly and justly intervened by making the consequential order, admittedly not requested. He urged this court not to interfere with the order appealed against as there was no substantial miscarriage of justice suffered by the appellants. Mr. Okocha pressed us to dismiss the appeal.
At the hearing of the appeal before us, learned counsel for the respondents adopted the respondents’ brief dated the 28th of February, 1992 and deemed filed with the permission of the court on the 4th of March, 1992. In amplification of respondents’ standpoint on the need for the consequential order complained of. Mr. Okocha referred to the judgment in Sadiq v. Bundi (1991) 8 NWLR (Pt.210) 443 at 457.
Both counsel also agreed on the facts and circumstances leading to this appeal. As indicated in the briefs, the crucial question to be resolved is whether or not the learned trial Judge was right and competent in making the consequential order appealed from. His main concern inferable from the printed record and from the facts before him was to protect the company, the 5th appellant, even at the risk of breaching the law and prohibitive rules of practice and procedure.
A consequential order should follow in natural consequence from an event which is adapted to produce or to aid in producing, such result. It is the correlative result of “cause”. To be considered validly ordered by a court, the Judge must confine himself within the ambit of what was requested in an application in which an opposing party is put on notice. As Nnaemeka-Agu, J.S.C. declared in F.A. Akinbobola & another v. Plisson Fisko, (supra), a consequential order is not merely incidental to a decision but one “flowing directly and naturally from and inevitably consequent upon it. It must be giving effect to the judgment already given; not by granting a fresh and unclaimed and unproven relief’. This is eloquent definition of the nature, scope and effect of a consequential order.
Applying the foregoing to the facts of the present appeal, it is obvious that the learned trial Judge stretched to excess the application before him, the text of which was for:
“an order of interlocutory injunction restraining the defendants/respondents their servants or agents, jointly or severally or otherwise or howsoever, from implementing the series of resolutions and/or decisions by them, pending the final determination of this suit.”
What was sought by the applicant is clear and unambiguous. The trial Judge went too far adrift to grant applicants/respondents what they did not request.
In doing so, the learned trial Judge exceeded his judicial power in the matter. In other words, the consequential order complained of was made without jurisdiction considering what was before him. Jurisdiction is conferred in the claims or by statute and not by assumption. This point is aptly illustrated in Etim Ekpenyong & Others v. Inyang Effiong Nvong & 6 others, NSCC 1974-1975, 28. The plaintiffs’ claim against the defendants was for account of all monies collected by the latter on behalf of Idua Assang Community in Oron Town, being proceeds from leases granted by the defendants to respective tenants of Idua Assang Community land in Oron Town, in a specified period and payment over to the community. Coupled to the claim was a request for perpetual injunction restraining the defendants, their servants and agents from further leasing the said lands or collecting, handling, keeping or otherwise dealing with community funds or lands, and from holding any office or serving in any capacity whatsoever. At the conclusion of pleadings, the plaintiffs brought a motion for an interim injunction praying the court to order inter alia the defendants from alienating any portion of the property by sale or otherwise, and to pay all monies received in respect of the property in court.
The learned trial Judge (Calabar High Court) in a reserved ruling ordered instead that the management of the funds be removed from the hands of the defendants. He, without any request made, ordered the establishment of a committee to handle the matter. The village council was suspended and in its place a Senior Divisional Officer was appointed to take charge of the committee. On appeal by the defendants, Ibekwe, J.S.C. found and held that a Judge has no power to award a claimant more than he claimed. It is not competent for him to award a relief, as in the present appeal, which was not claimed. The learned jurist significantly declared and held that the learned trial Judge acted ultra vires in suspending the village council as he had no power to do so, adding that courts should refrain from making orders which will be unenforceable. The decision in Nalsa & Team Associates v. Nigeria National Petroleum Corporation (1991) 8 NWLR (Pt.212) 652 at 679 is also in point.
The facts and circumstances in Etim Ekpenyong & Others, (supra) are pertinently similar to those in the instant appeal. Ojutalayo J, entirely and without any material to support his action, slided away from what was solemnly requested by the applicants/respondents and proceeded to install and promote the General Manager of the 5th appellant company. He wrested the administrative responsibility of the management from the Directors of 5th appellant company to another body created by him and ordered how the 5th appellant company should run its affairs.
All this is, with respect, gross and inappropriate interference with the administrative management of the 5th appellant company.
It is totally uncalled for. The learned trial Judge did not however, direct how his order could be enforced. I find myself entirely in agreement with the submission of learned counsel for the appellants, Mr. Nwogu, that the consequential order was not requested for and did not arise necessarily from the prayer sought. Importantly, the appellants whose rights are actually affected by the said order were not heard. See Kafaru Oje & another v. Chief Ganiyu Babalola & 2 others (1991) 4 NWLR (Pt.185) 267 at 280. The court adjudicates on matters before it. It cannot direct the administration of the 5th appellant company.
A consequential order must be one giving effect to the judgment which it follows. Any consequential order which detracts from it is incompetent. To be valid, the order must be related to the matters adjudicated upon. See Sowemimo, J.S.C. (as he then was) in Obayagbona & another v. Obazee & another (1972) 5 S.C. 247. C
It is discernible from the respondents’ brief of argument that they, respondents, could not really oppose the appeal on the point set out for determination. The position taken by them may be described as broad discourse of statutes and rules applicable, generally, in deciding the scope and force of interlocutory injunctions. In conclusion, this appeal appears well taken. The answer to the only issue set out in the respondents’ brief which I find similar in content with that expressed and presented in the appellants’ brief. is in the negative. The lower court was not right in making the order defined as “a consequential order”. It is too far remote from the decision taken on the application of the appellants. The contents of the order are equally far-fetched and ineffectual.
In conclusion this appeal is meritorious. It therefore succeeds. It is hereby allowed. The consequential order complained of is hereby set aside. Costs to the appellants is fixed at N1,000.00 to be paid within 30 days from the date hereof.
An enrolled order encompassing the decisions herein shall be prepared and served on the Registrar of the court below and on the parties at their expense.
Other Citations: (1992)LCN/0128(CA)
