Alhaji L. A. Gbadamosi & Ors V. Chief Stephen Ikpoku Alete & Anor (1996)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
Consequential to an order of the learned trial Judge, Hon. Justice S. O. Ojutalayo, Federal High Court holden at Port Harcourt wherein he re-ordered the reconstitution of the parties, they are now the 1st and 2nd plaintiffs on record now referred to in this judgment as 1st and 2nd respondents, amended their particulars of claim against the 1st to 5th defendants now referred to as 1st to 5th appellants in this judgment thus:-
“Amended particulars of claim
The plaintiffs’ claim against the defendants, jointly and severally, is for the following reliefs namely:
(1) A declaration
(a) That the 1st plaintiff is still the executive chairman of the 5th defendant company and the chairman of the Board of Directors of the 5th defendant company,
(b) That the meeting which 1st-4th defendants purported to convene and hold on the 16th of August, 1990, was not a meeting of the Board of Directors of the 5th defendant company and accordingly all the decisions/resolutions passed at the said meeting, purporting to be decisions/resolutions of the Board or Directors or the 5th defendant company are ultra vires, null and void and of no effect.
(c) That the purported removal of the 1st plaintiff from office as chairman of the 5th defendant company on 16th August, 1990 is ultra vires, null and void and of no effect.
(d) That the purported appointment of the 1st defendant as chairman of the 5th defendant company on 16th August 1990 is ultra vires, null and void and of no effect.
(e) That the purported appointment of the 2nd defendant as the Managing Director of the 5th defendant company on 16th August 1990 is ultra vires, null and void and of no effect.
(f) That the 1st and 3rd defendants are not and have not been duly appointed ‘substantive directors’ of the 5th defendant company,
(2) An injunction restraining the 1st defendant from acting as the chairman of the 5th defendant company. (3) An injunction restraining the 2nd defendant from acting as the Managing Director of the 5th defendant company,
(4) An injunction restraining the 1st to 5th defendants from giving effect to any of the resolutions/decisions purportedly made by them at the said meeting held by them on 16th August, 1990”. After service of the writ on the appellants/defendants before settlement, filing, and exchange of pleadings, the respondents brought an application for interlocutory injunction on notice against appellants under section 13, Federal High Court Act, 1973, Order XX rule I and Order 33 rule 1 Federal High Court (Civil Procedure) Rules 1976 and sought the relief praying the court for:-
“(1) An order of interlocutory injunction restraining the defendants/respondents their servants and/or agents, jointly or severally or otherwise or howsoever, from implementing the series of resolutions and/or decisions made by them on 16th August, 1990 or any of them, pending the final determination of this suit”
The respondents filed a copious supportive affidavit of 65 paragraphs and marked the attached documents as Exhibit SIA 1 to 15 with the minutes of the meeting of 16th August 1990 as Exhibit SIA 8 whilst the articles of association of the 5th defendant company/appellant, was Exhibit SIA 15.
Upon service of the motion and the affidavit on the appellants in like manner as the respondents they filed a joint counter- affidavit equally copious of 95 paragraphs with documents attached marked as Exhibits A to L and further counter-affidavits and documents marked as Exhibits 1 – 4.
Upon the matter coming up for argument the learned counsel for the respondents relied on the law and rules already referred to supra in this judgment and sections 299 – 304 of the Companies and Allied Matters Decree 1 of 1990 and all the facts deposed to in the 65 paragraphs of the supportive affidavit and the documentary evidence attached and marked as exhibits.
Based upon the substantive and procedural laws and rules, learned counsel for the respondents contended and submitted that from the supportive affidavit the respondents are shareholders and directors of the 5th appellant. The 1st respondent was until 16th August 1990 when the cause of action arose the Chairman of the 5th appellant/company.
By virtue of being shareholders and directors of the 5th appellant the respondents were entitled to some benefits, privileges of emoluments of directors fees. That 16th August 1990 meeting was purported to be a meeting of the Board of Directors of 5th appellant at which several decisions were purported to have been taken wherein 1st respondent who was not served with the notice of the meeting was purported to have been removed as Executive Chairman of 5th appellant in his absence.
Having not been served with the notice of the meeting with his removal as Chairman upon, among other grounds, misuse of the funds of 5th appellant for his personal use without approval of the Board amounted to a denial of fundamental right of fair hearing entrenched in section 33(1) of the Constitution of the Federal Republic of Nigeria 1979. As no notice required under the law was issued in respect of the said meeting the purported meeting was not only irregularly held but also the decisions were irregularly made. If the said decisions were allowed to be implemented it would materially and adversely prejudice the respondents’ interests as shareholders and directors of 5th appellant and cause them irreparable injury and damage sought to be protected by injunction pending the final determination of the substantive suit or action.
The complaints of the respondents are namely that the meeting of 16th August 1990 was not properly convened and conducted contrary to articles of association of 5th appellant which required notice to be served on 1st respondent. Court to reject the contention of appellants that under the Companies Act 1968 no notice was required as from 2nd January 1990 when Decree 1 of 1990 came into operation its section 266 supercedes the 1968 Companies Act and it stipulates that notice of the meeting be served on the 1st respondent.
Secondly, 2 persons, the 1st and 3rd appellants, purported to attend the meeting as directors on 16/8/90 when they were not substantive directors as they were only “alternate directors” as shown in Exhibit SIA 5.
Thirdly, that 1st respondent be removed from office as Chairman of the 5th appellant for “misuse of office spending of over N200,000, company’s fund for his personal use”. At no time was 1st respondent accused of misappropriation of over N200,000.00 of the 5th appellant’s fund, thereby he was not afforded the opportunity to defend himself even before the illegal meeting of 16/8/90.
The 4th issue was the appointment of the 1st appellant as Chairman of the Board of 5th appellant in substitution for the 1st respondent and the purported appointment of the 2nd appellant, an Indian national employed as Managing Director under the expatriate quota of another company to wit General Plastics Nig. Ltd., as Managing Director of 5th appellant and also its Deputy Chairman.
Learned counsel for respondents submitted before the lower court and I quote him as recorded in page 219 of the record of proceedings as follows:”
“These are triable issues which can only be determined at the hearing of the substantive suit.”
The consequence of the above complaints and premises put the respondents in imminent danger of losing or suffering irreparable injury to their interest in the 5th appellant with the removal of 1st respondent as Executive Chairman in addition to the performance of 1st respondent as Managing Director of 5th appellant as that position was vacant, at one time 2nd appellant applied for the position. Under section 301 of 1990 Decree I, the respondents could not claim damages hence respondents could not be compensated in damages.
The respondents from the foregoing made out strong prima facie case which entitled them to the order of injunction sought by them: see Kotoye v Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt.98) 419. They also in paragraph 64 of their affidavit gave undertaking as to damages and referred to Chief G.J. Amachree v. International Cigarette Co. Ltd. & Anor (1989) 4 NWLR (Pt.118) 686 which case was almost on all fours with the facts of the present appeal.
The governing consideration at the stage of interlocutory motion on notice was maintenance of the status quo which meant the position of the parties before the illegal acts of the appellants on 16/8/90 from where and when the cause of action arose. As the trial court had inherent power to continue to maintain the status quo, the trial court should grant the prayer following the dictum of Oputa J.S.C. in Military Governor of Lagos State v. Chief Emeka Odumegwu Ojukwu & Anor (1986) 1 NWLR (Pt.18) 621. Based upon the above premises, the lower court should grant the prayers, as the counter-affidavit was no answer to diminish the grounds to grant the prayers notwithstanding on-filing of further affidavits to the counter-affidavits as the affidavits of the respondents reflected the true position of the matters. Reliance was put on N.B.N. v Are Bros (1977) 6 S.C. 97. So learned counsel for respondents moved in terms of his motion.
In reply learned counsel for the appellants submitted in the lower court that section 13 Federal High Court Act covers “just and convenient rule,” Sections 299 – 304 of the Companies and Allied Matter Decree 1990 was nonexistent then as the Act which amended Decree 1 of 1990 came into force on 31st December 1990 that the applicable law was the Companies Act 1968 with clause 1 of the articles of association of the 5th appellant wherein it was adopted. By virtue of this provision, as 1st respondent was out of Nigeria, no notice of the meeting was required to be served on him which in any event was not required so the meeting of 16/8/90 was validly held, court to reject that it was mandatory to give and serve notice of the meeting on 1st respondent in accordance with article 97 of Table A of 1968 Act expressly adopted by articles 1 and 2 of Exhibit SIA 15.
2nd respondent could not complain about the meeting of 16/8/90 as he attended and participated actively in the meeting as he put himself up as a Deputy Chairman as shown in item 10 page 4 of Exhibit SIA 8. Having been present at the meeting he was presumed to have participated in the deliberations. There were 7 directors of 5th appellant as 2 were out of the country the remaining five attended thereby scoring 100% of the directors who were eligible to receive notice and attendance at the meeting. The quorum was formed by article 23 of Exhibit SIA 15. Under the 1968 Companies Act, no form of notice was prescribed or admitted, it, thereby, gave approval of a verbal notice which was sufficient: see Sir Sebag Shaw & George Dennis Smith 5th Edition page 221 “The Law of Meetings: Their Conduct and Procedure”.
The issue that 1st and 3rd appellants were not as at 16/8/90 substantive directors their participation in the meeting was ultra vires be rejected as there is no distinction as urged on the court by the respondents, under section 395 of Companies Act 1968 a director is a director and it was immaterial that 1st and 3rd appellants were called “alternate directors”: they were covered by article 29 of Exhibit SIA 15. From the documents referred to 1st and 3rd appellants were full fledged directors and that confirmed that the meeting of 16/8/90 was valid.
The respondents complained about the appointment of 2nd appellant, an alien, an Indian national as the Managing Director of 5th appellant. The answer is to be found in articles 100 and 106 Table A that any director could be appointed as Chairman or Managing Director of the company. The appointments of 1st and 2nd appellants as directors are valid as decided in Foster v. Foster (1916) 1 Ch 532 at 542.
Applying the case of Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144 before injunction could be granted the applicant must have legal right which respondents lacked therefore the application be refused for lack of legal rights by the respondents. But as for the 1st respondent he had personal claims in items (1) (a)(b) and (c) as distinct from the 5th appellant’s right and therefore claims 2. 3 and 4 of the particulars of claim be struck out as the respondents lacked the locus standi to bring them: see Heyting v. Dupont (1963) 3 All E.R. 97; Yalaju-Amaye v. AREC Ltd. (1990) 4 NWLR (Pt.145) 422 at 451-452 as there was no evidence that 1st respondent was ever appointed “Executive Chairman”. There is no provision in the Exhibit SIA 15 for appointment of “Executive Chairman”.
As earlier submitted that respondents had no legal rights contrary to the earlier submission that 1st respondent had semblance of legal right, with respect, learned counsel must be confused as to what is meant by legal right. Learned counsel for appellant’s still hammering denial of legal rights contended that with this lack of legal rights it was needless to go into the issue of balance of convenience so held the Court of Appeal in Monica Ego Kanno v. Banigo Kanno (1986) 5 NWLR (Pt.40) 138. Should the court hold to the contrary as respondents were still directors of 5th appellant the only denial to 1st respondent is the chairmanship which position only made him the first among equals not being a position to be held for life.
The balance or convenience is for the benefit of 5th appellant it would be improper to impose 1st respondent on the 5th appellant as he was validly removed on 16th August 1990. As 2nd respondent participated and vied for Vice Chairman but lost he suffered no injury.
For the foregoing reasons the application be refused whilst the lower court should grant an order for accelerated hearing of the case.
In a considered ruling delivered on the 18th day of February, 1991, Hon. Justice S.O. Ojutalayo Judge, as reported at pages 245 to 267 after an exhaustive review of the affidavit evidence in the affidavit and counter-affidavit granted the interlocutory injunction.
The learned trial Judge made observation that the facts deposed to in the affidavits and the submissions of both counsel thereon were quite irrelevant, inappropriate and inapplicable to the application, they were more appropriate for consideration at the hearing of the substantive suit itself.
The learned trial Judge notwithstanding the above warning, proceeded to consider the issues raised on the obviously conflicting affidavit evidence. In making findings of fact he had unwittingly made findings to be decided in the substantive suit. The parties joined issues as to whether notice of the meeting and service on the 1st respondent was mandatory. The respondents’ contention was that it was mandatory whilst the appellants contended that it was not in that the applicable law was Table A of 1968 Companies Act adopted in the articles of association of the 5th appellant, Exhibit SIA 15. He concluded and resolved that the meeting of 16th August 1990 was invalid although he was euphemistically stating this was to be decided in the substantive suit.
On the issue of fair hearing he stated at page 263 thus:-
“If all these were denied to the 1st plaintiff (1st respondent) by 1st – 4th defendants as alleged then their actions in this regard also appear to violate the 1979 Constitution of the country.”
Learned trial Judge concluded that the balance of convenience was in favour of the respondents and therefore granted the order of interlocutory injunction. Being dissatisfied, the appellants by its notice of appeal at pages 293 – 296 of the record of proceedings raised six grounds of appeal. In accordance with the Court of Appeal Rules the appellants filed their brief of argument which by paragraph 3 raised the under-mentioned as issues for determination. The appellants’ brief was filed on 1st December 1992.
“3.1 From the appellants’ view point, the key issues which call for the determination of this honourable court are as follows:-
(1) Having regard to the circumstances of this case. Should the learned trial Judge have granted the relief of interlocutory injunction.
(2) Was the learned trial Judge right to have delved into unresolved live issues before him in the substantive suit and was he also right in making the far reaching findings and conclusions as he did at that stage of the case.
(3) If the answers to (1) and or (2) above are in the negative, should the learned trial Judge continue with the hearing of this case and if so, on what terms as to future conduct.”
In accordance with the Court of Appeal Rules, the respondents after service of the appellants’ brief of argument filed on 17th May 1993 deemed to be validly filed on 18th May 1993, respondents’ brief of argument which at page 2 in paragraph 3 raised the issues for determination as under:-
“3 Issues for determination
3.1 It is submitted that the real issues for determination in this appeal are as follows:-
(1) Whether, in the circumstances of this case, the learned trial Judge was right to have granted the order of interlocutory injunction as prayed by the plaintiffs.
(2) Did the learned trial Judge delve into unresolved live issues relevant for consideration at the trial of the substantial suit or make any far reaching findings and conclusions in that regard?
(3) Whether there is any valid or cogent reason why the learned trial Judge should be precluded from exercising his unfettered jurisdiction to hear and determine-the suit.”
The reply brief by the appellants was filed on 2nd June 1993.
Kindly pardon me that whatever the outcome of the appeal issue 3(3) in both briefs of argument is being taken first in this appeal because of the circumstances concerning the learned trial Judge, Hon. Justice S.O. Ojutalayo.
Section 74(1) Evidence Act, Cap. 112 Laws of the Federal Republic of Nigeria 1990 states as follows:-
“74(1) The court shall take judicial notice of the following facts-
(j) the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorized by law to appear or act before it”
In Commonwealth Shipping Representative v. P & O Branch Service (1923) AC 191 at 212 that
“Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”
Followed and adopted by Idigbe J.S.C., in Sylvester Johnson Mayaki v. Lagos City Council Caretaker Committee (1977) 7 S.C. 81.
Under the 1979 Constitution of the Federal Republic of Nigeria there is a mandatory age under which a judicial officer retires. Section 277 of 1979 Constitution defines judicial officer as:-
‘judicial office’ means the office of Chief Justice of Nigeria or a Justice of the Supreme Court or the President or Justice of the Federal Court of Appeal, the office of the Chief Judge or a Judge of a High Court, a Grand Kadi or Kadi of the Sharia Court of Appeal of a State, or President or a Judge of the Customary Court of Appeal of a State; and a reference to a ‘judicial officer’ is a reference to the holder of any such office.”Hon. Justice Ojulalayo a Judge of the Federal High Court comes within the meaning and intendment of section 277 of 1979 Constitution as a judicial officer and that the said judicial officer having attained the mandatory retirement age of a judicial officer retired in December 1995 as a judicial officer of the Federal High Court. Applying section 74(1)(j) Evidence Act Cap. 112 supra the presiding Judge as at now of the Federal High Court Port Harcourt is Hon. Justice Dr. Aina.
For the above reasons it is hereby resolved that another Federal High Court Judge shall continue with the hearing of this case whatever the decision of this court of the interlocutory appeal of injunction and not Justice Ojutalayo who has retired and ceased from being a judicial officer of the Federal High Court.
Be that as it may, the issues for determination formulated by the parties in this appeal are very much similar and the remaining two issues from each brief of argument can be further condensed or reduced to one issue whether the learned trial Judge exercised his judicial discretion properly or wrongly in granting the order of interlocutory injunction against the appellants as prayed for as already set out supra.
Section 13(1) Federal High Court Act, Cap. 134 Laws of the Federation of Nigeria provides as follows:-
“13(1)The court may grant an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do.”
Whilst Order XX Federal High Court (Civil Procedure) Roles states as follows:-
“1. In any suit in which it is shown to the satisfaction of the court that any property which is in dispute in the suit is in danger of being wasted, damaged, or alienated by any party to the suit, it shall be lawful for the court to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such other order for the purpose of staying and preventing him from wasting, damaging or alienating the property, as the court may seem meet, and in all cases in which it may appear to the court to be necessary for the preservation, or the better management or custody of any property which is in dispute in a suit, it shall be lawful for the court to appoint a receiver or manager of such property … as to the court may seem proper.”
Injunction is nowhere defined under section 64 of the Federal High Court Act Cap I34 supra. An interlocutory injunction means by Spry, Equitable Remedies 2nd Edition page 430 as follows:-
“An interlocutory injunction is an injunction that is directed to ensure that particular acts do not take place or continue to take place pending the final determination by the court of the rights of the parties.”
What it connotes is that the purpose of interlocutory injunction is to regulate the position of the parties pending trial whilst avoiding a decision on such issues which could only be resolved at trial. This right to interlocutory relief is not a cause of action in itself as stated by Lord Diplock in The Siskin” 1979 AC 210 at 256:-
“A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action:’
From section 13(1) Cap. 134supra and Order XX Federal High Court Civil Procedure Rules the grant or an interlocutory injunction being an equitable remedy is both temporary and discretionary as it is an exceptional remedy American Cyanamid Co. Ltd. v. Ethicon Ltd. (1975) AC 396 at 405, and by Whitford J in Celanese Corporation v. Akzo Chemie UK Ltd (1976) FSR 273 at 275 that:-
“the grant of interlocutory relief has always been considered the grant of a somewhat exceptional character and it is inappropriate to gram relief of this nature unless it is absolutely vital in order to protect the legitimate interests of the plaintiff that such relief be granted.”
The guide or principle to grant or refuse an order of interlocutory injunction are stated in the under-mentioned cases:-
(a) Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95 at 98, 99-100 per Sowemimo Ag. J.S.C. (as he then was) when he said:-
‘In Kufeji v. Kogbe (1961) 1 All NLR 113 which deals with the practice and procedure governing applications for interim injunctions Coker J (as he then was) stated at page 114:-
‘In an application for interim relief by way of injunction, it is not necessary that a plaintiff or applicant should make out a case as he would do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing’.”
“In a case of interim injunction it is not necessary to determine the legal right to a claim since at that stage, as it is in this case, there can be no such determination; because pleadings have not been filed, no issue joined and no oral evidence adduced: therefore there cannot be any finding on the merits.”
(b) Lord Diplock in American Cyanamid v. Ethicon Limited (1975) AC 396 at 407 reads thus:-
‘The court, however, expressly deprecated any attempt to fetter the discretion of the court by laying down any rules which would have the effect of limiting the flexibility of the remedy as a means of achieving the objects that I have indicated above. Nevertheless this authority was treated by Graham J., and the Court of Appeal in the instant appeal as leaving intact the supposed rule that the court is not entitled 10 take any account of the balance of convenience unless it has first been satisfied that if the case went to trial upon no other evidence than is before the court at the hearing of the application the plaintiff would be entitled to judgment for a permanent injunction in the same terms as the interlocutory injunction sought.
Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as ‘a probability’ ‘a prima facie case’ or ‘a strong prima facie case’ in the contract of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief, The court no doubt must be satisfied that the claim is flat frivolous or vexatious; in other words, that there is a serious question to be tried,
It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence all affidavit as to facts on which the claims of either party may ultimately depend liar to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. (The italics are mine)
Adopted and followed in my unreported ruling dated 11th November 1980 in suit LD/1282/80 between Tairu Bakare v. Alhaji Sikiru Aremu Jenmi (the parties did not appeal against my said ruling) see page 20 Commentaries from the Bench by Onalaja J.
(c) Obeya Memorial Specialist Hospital Ayi-Onyema Family Ltd. v. (1) Attorney General of the Federation (2) Attorney General of Benue State (1987) 7 S.C. (Pt.1) 52 at 71; (1987) 3 NWLR (Pt.60) 325 per Obaseki J.S.C. wherein he observed as follows:-
“When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiffs legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex-hypothesis, the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action, It was to mitigate the risk of injustice to the plaintiff during the period the uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction. However, since the middle of 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be [held] at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do, The object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where the ‘balance of [convenience] lies’.”
See further Union Beverages Ltd. v. Pepsicola International Ltd. & 3 Ors (1994) 3 NWLR (Pt.330) 1 at 12, and 15 per Adio, J.S.C.; Victory Merchant Bank Limited v. Pelfaco Ltd. & Anor (1993) 9 NWLR (Pt.317) 340 at 352-353 per Edozie, J.C.A.
From the above authorities the court when deciding whether to grant an application for an interlocutory injunction should as a general rule have regard only to the under-mentioned criteria:-
(a) First: is there a serious issue to be tried?
(b) Secondly: are damages an adequate remedy?
(c) Thirdly: where does “the balance of convenience lie”?
(d) Fourthly: are there any “special factors”?
In the instant appeal looking at the affidavit, and counter-affidavits from the consideration of the lower court it was quite obvious and so found by the lower court that they were irreconcilably in conflict. In such a situation the rule of law is as laid down in the following cases:-
(i) Chief A. O. Uku & 4 Ors etc v. (1) D. E. Okumagba & Anor (for themselves and on behalf of Olodi, Oki and Ighogbadu Ighogbadu families of Okere, Warri (3) Shell BP Ltd (4) Omosohwofa Eboh (for himself and on behalf of Olodi, Emakro, Info and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri (1974) 3 S.C. 35 at 64 – 65 per Sir Udo Udoma that:-
“There are authorities for the proposition that as a matter of practice an application which is supported by an affidavit against which there is also a counter-affidavit where the facts deposed to in such affidavits are irreconcilably in conflict then in order to resolve such conflicts the judge ought to invite the parties thereto to call oral evidence if they wish. Such oral evidence would enable him to test the affidavit evidence and thereby be enabled to resolve such conflicts before acting on such affidavit evidence. (See Government of Ashanti v. Adjuah Korkor & Ors 4 WACA 83; and Akinsete v. Akindutire (1966) 1 All NLR 147). In the present case the learned Judge failed to act in terms of this old established practice. We accept the submission by learned counsel for the appellants that this failure has occasioned a miscarriage of justice. The order of the learned Judge cannot therefore in the circumstance be sustained.”
See further Eboh & Anor v. Oki & Ors. (1974) 1 S.C. 179, 1974 NSCC 26 at 27 per Irikefe J.S.C. (as he then was) wherein it was held that:-
(1) “Where there are violent conflicts on material facts in affidavits grounding an application-the court of trial is obliged to call for evidence on oath in order to resolve issues of credibility. Further that this [duty] is not diminished whether the parties to the application specifically request for leave to lead evidences on oath or not.”
Olu-Ibukun & Anor v. Olu-Ibukun (1974) NSCC 91 per Fatayi-Williams J.S.C (as he then was) wherein he held that the trial Judge erred in making findings of facts on the conflicting affidavits of both parties without taking oral evidence, adopted and followed in Joseph O. Falobi v. EIizabeth O. Falobi ( 1976) 9-10 S.C. 1; (1976) 1 NMLR 169.
Recently by the Court of Appeal Enugu Division in Stephen Amiara & 4 ors. v. Chief Alinchi Alo (1995) 7 NWLR (Pt.409) 623 at 625 wherein it was held at ratio 3:-
“3. A court is expected to resolve conflicting affidavit evidence by calling oral evidence of the deponents to resolve the conflict and where the decision of the trial court is based on the conflicting affidavits such decisions will not be allowed to stand. (Falobi v. Falobi (1976) 9 S.C. 1; Akinsete v. Akindutire 1 All NLR 147 at 148; Eboh v. Oki (1974) 1 S.C 179 at 189 – 190).”
Applying the above authorities the learned trial Judge did not take oral evidence as he was enjoined to do because the affidavits and counter-affidavits were irreconcilably in conflict but proceeded to base his judicial discretion on them. In reaching the decision it was based on wrong principle of law in such a situation an appellate court can interfere as it amounts to injustice which the Court of Appeal can correct: see University of Lagos & Anor v. M.I. Aigoro (1985) 1 NWLR (Pt.1) 143; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at page 749. The appellate court approach is limited; so observed Lord Diplock in Hadmor Productions Ltd. v. Hamilton (1982) 2 WLR 322 at 325; Carden Cottage Foods Ltd. v. Milk Marketing Board (1984) A.C. 130.After a careful consideration of the exercise of the judicial discretion by the lower court I am strongly of the view that the learned trial Judge has shown a wrongful exercise of the discretion as he acted under a misconception of law that where an action based on affidavit evidence where the affidavits are irreconcilably in conflict the rule of law is mandatory that oral evidence be taken, the onus is on the court to take oral evidence even where neither of the parties applied that the evidence be taken.
The learned trial Judge was in error when in considering the application for interlocutory injunction resolved conflicts of evidence on affidavits as to facts on which the claim of either party may ultimately depend and also decided difficult questions of law which called for detailed argument and mature consideration on whether service of notice of the meeting was mandatory or not under 1968 Companies Act or Decree 1 of 1990 Companies and Allied Matters and or as provided in Exhibit SIA 15 the articles of association of the 5th appellant, the approach of the learned trial Judge was contrary to the rule in Obeya Memorial Specialists Hospital v. Attorney General of the Federation & Anor (1987) 3 NWLR (Pt.60) 325; (1987) 7 S.C. (Pt.1) 52. For this error this appeal succeeds.
As the appellate court approach is limited so as not to fall into the same error as the lower court this court makes no comments on the merits of the case or decide on the conflicting affidavit evidence which in view of the order to be made under section 16 Court of Appeal Act.
In conclusion this appeal succeeds applying section 16, Court of Appeal Act. The case is remitted to the Federal High Court Port Harcourt for trial de novo, obviously as stated above not before Hon. Justice Ojutalayo who had retired as a judicial officer. The interlocutory order of injunction granted the respondents in accordance with the relief sought for interlocutory injunction against the appellants on 18th day of February 1991 is hereby set aside and an order of accelerated hearing by the Federal High Court Port Harcourt to decide the case is hereby made. In ordering accelerated hearing this court was guided and adverted itself to the case of John Holt Nigeria Ltd. & Anor v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383 wherein Ademola CJN observed at pages 387 – 388 as follows:-
“It should have been obvious to the trial Judge that this is a matter in which time and inconvenience would be saved by the hearing of the substantive action itself instead of the time spent on hearing arguments on an interlocutory injunction and granting order for leave to appeal. Everything ought to have been done to avoid trying the same question on two occasions … [as an interlocutory injunction is not a remedy for an act already done].”
As the appellants succeeded in this appeal following the rule of law that costs follow the event and costs are awarded to compensate the successful party and not to punish the unsuccessful party the appellants are entitled to costs, which I shall now proceed to assess and fix. Having regard that appellants succeeded in this court, there is no record of any costs awarded in the lower court, as the party likely to bear the brunt of this action is the 5th appellant I make no order as to costs.
Other Citations: (1996)LCN/0248(CA)
