Babatunde Adenuga V. J.K. Odumeru & Ors (2001)
LAWGLOBAL HUB Lead Judgment Report
KARIBI-WHYTE, J.S.C.
On the 23rd October, 2000, the court unanimously upheld the preliminary objection to the hearing of plaintiffs/appellants’ motion dated 30th August and filed on the 31st August, 2000. These are my reasons for the ruling.
The preliminary objection is by the 1st – 3rd and 8th defendants/respondents to the application by the plaintiffs/appellants in this appeal seeking by motion on notice to the defendants/respondents dated 30th August and filed on 31/8/2000 praying the court for the following orders –
(1) Restraining the 1st – 3rd defendants from
“(a) Taking any disciplinary action against any member of the Association pending the determination of the appeal in the Supreme Court.
(b) Calling or convening any meeting, seminar conferences of the Association.
(c) Passing, issuing any statements and/or resolution on behalf of the Association.
(d) An order that the meeting of the 8th defendant/respondent summoned by the 1st – 3rd respondents in Jos, Plateau State on 27th July, 2000 and the resolutions purportedly passed at the said meeting is in contempt of this Honourable court in that the act was done deliberately to render the eventual judgment of this Honourable court nugatory should the appeal succeed.”
The motion is supported by an affidavit dated 31st August, 2000 med the same day and sworn to by Babatunde Adenuga, the 1st plaintiff. Babatunde Adenuga the 1st plaintiff has sworn to a further affidavit dated 5th October, 2000 in support of the motion.
In support of the motion of the plaintiffs dated 30/8/2000 and filed on 31/8/2000 reproduced above in this ruling, the 4th 5th and 6th and 7th defendants/respondents, have brought a motion on their own behalf, praying this court for an order restraining the 1st- 3rd defendants from
(a) Taking any disciplinary action against any member of the Association pending the determination of the appeal in the Supreme Court.
(b) Calling or convening any meeting, seminar, conferences of the Association.
(c) Passing, issuing any statements and/or resolution on behalf of the Association.
And for such other orders as the Honourable court may see fit to make in the circumstances.
This motion is supported by an affidavit of 18 paragraphs sworn to by Alhaji M.B.M. Mua’zu, the 6th defendant/respondent and dated 23rd August, 2000 and filed the same day. There is also a further and better affidavit of 14 paragraphs sworn to on the 28th August, 2000 by Samuel Olumuyiwa Abayomi Sosanya, the 4th defendant/respondent and filed the same day. Attached to this affidavit is a document Exhibit A, the resolutions passed at the Special General Meeting of he Association of National Accountants of Nigeria on Thursday 27th July, 2000 at Plateau Hotel, Jos.
On the 26th September, 2000, the 1st – 3rd, 8th defendants/respondents, filed a motion raising a preliminary objection to the hearing and determination of the motion and striking out the motion of the plaintiffs/appellants/respondents and also of the 4th – 7th defendants/respondents’ application dated 18/8/2000 but filed 23/8/2000 and all the accompanying documents.
The following grounds were relied upon for the objection-
(a) (i) Against that of the plaintiffs/appellants/respondents, that the reliefs (a)(b)(c) and (d) now sought in this court was not sought for in the trial court nor pronounced upon by the trial court nor was the same the subject- matter of the appeal in the Court of Appeal now on appeal to the Supreme Court.
(ii) That in respect of relief No. (d) the court does not grant an injunction in respect of a completed act.
(b) In respect of the application of the 4th – 7th defendants/respondents
(i) That as a defendant in the trial court the latter did not file any cross-action, nor ask for any relief, in the trial court or the Court of Appeal.
(ii) That as a respondent who did not file a respondent notice or cross-appeal, their primary duty is to support the judgment appealed against.”
Applicants filed an affidavit of six paragraphs dated 26th Sept., 2000 sworn to by John Erameh in support of the motion. There is also the affidavit of Johnson Kolawole Odumeru, 1st defendant/respondent, of 12 paragraphs dated 26th September, 2000 in opposition to the motion of the plaintiffs/appellants/applicants. On the same date Johnson Kolawole Odumeru, the 1st defendant/respondent swore to a 15 paragraph affidavit in opposition to the motion of the 4th to 7th defendants/respondents dated 23rd August, 2000 and filed the same day. On the 16th October, 2000, Johnson Kolawole Odumeru swore to a supplementary affidavit of 11 paragraphs which was filed the same day. All the affidavits sworn to by Johnson Kolawole Odumeru, were sworn to on his own behalf and on behalf of the 2nd, 3rd and 8th defendants/respondents.
The position therefore in this application is that the 1st, 2nd, 3rd and 8th defendants/respondents, are the applicants seeking to strike out the motion of the plaintiffs/appellants/applicants of the 30th August, 2000. There is also the motion of the 4th – 7th defendants, dated 18th and filed on the 23rd August, 2000, seeking to restrain the 1st- 3rd defendants as per the orders set out above.
Mr. C. O. Akpamgbo, SAN, arguing the preliminary objection on behalf of the 1st – 3rd and 8th defendants relied on the motion filed by defendants/respondents on the 26m September, 2000. I have already set out the terms of the application and the grounds relied upon. Learned senior counsel relies on all the 7 paragraphs of the affidavit.
He submitted that the motion sought to be struck out savours of an injunctive relief and not for a stay of judgment. Learned Senior Counsel referred to the statement of claim and to paragraph 13(a)-(f) namely the relief sought in the court of trial and submitted that the prayers now sought were not sought for in the courts below. In fact it was argued they are not related or connected to the reliefs sought in the courts below. It was contended that applicants have not disclosed any infringement of their rights or any attempt to do so.
Learned counsel submitted that injunction cannot be granted in respect of a completed act. In respect of the position of the 4th -7th defendants, Mr. Akpamgbo, SAN, submitted that having been defendants/respondents in the courts below, and had not cross-appealed, they cannot bring the motion. A defendant who has not counter-claimed can obtain an order for interlocutory injunction if he can show a breach of his right or that his right is likely to be breached. He cited and relied on Ifekwu v. Mgbako (1990) 2 NWLR(Pt. 140) 588 Igbinigie v.Yusuf (1993) 2 NWLR (Pt. 274) 206 at P. 219. We have been urged on the above submissions to uphold the preliminary objection and strike out the motion.
Opposing the application Mr. Ogundeyin, learned counsel to the plaintiffs/appellants, who are the respondents to this application submitted that the claims in the writ of summons and their prayers in the motion of the 30th August sought to be struck out were related. He referred to Order 8 r. 12(3) R.S.C. 1985 as amended as enabling the grant of the prayers sought. Learned counsel cited Mobil Oil (Nig) Ltd. v. FBIR (1977) 3 sc. 97 in support of his submission that fresh points of law can be taken in the Supreme Court even without leave.
On his part Mr. Monokpo who appeared for the 4th – 7th respondents but had filed a motion on the same terms as plaintiffs/appellants, sought leave to withdraw their motion. The motion of the 4th – 7th respondents was accordingly struck out.
It is relevant and pertinent for a clear elucidation of the argument of the applicants to state briefly the history leading to this litigation and particularly the claim of the plaintiffs against the defendants which has given rise to the action in the first instance. The background information will greatly assist in determining whether the prayers sought by the plaintiffs fall within the scope of their claim in the action against the defendants/respondents/applicants in this motion.
The facts averred in plaintiffs’ statement of claim are that all the parties to this litigation are members of the Association of National Accountants of Nigeria; and the association as a body corporate. The plaintiffs are financial members of the association. The 1st and 2nd defendants are the President and vice-president of the association, which is the 8th defendant. The tenure of office of the President and Vice-President appointed on the 27th June, 1996 for a two-year term expires on the 26th June, 1998. The 3rd defendant was appointed Treasurer on the 27th June, 1996. There is a council of the 8th defendant. The 4th, 5th, 6th and 7th defendants are some of the members of the council, and have been sued for and on behalf of the entire council. Plaintiffs have complained that the council whose tenure expires on the 20th Jan., 1997 has failed or refused to hold an annual general meeting of the 8th defendant association, and accordingly denied members of the 8th defendant association, the opportunity to nominate fresh people to constitute a new council The tenure of members of the present council was to expire on the 19th January, 1997.
The contention of plaintiffs is that the tenure of 1st -3rd defendants expired on June 26, 1998, and that they had accordingly ceased to be officers of the 8m defendant association.
Long after the expiration of the tenure of office of the 1st -3rd defendants, they organized a workshop on the 22nd July, 1998. At the instance of the 1st -3rd defendants, members of the 8th defendant association had been invited on 14/10/1988 in an advertisement in the Guardian Newspapers to pay money to the association. Plaintiffs say that they had made several attempts to summon an extra ordinary general meeting of the 8th defendant association according to the laws of the association to discuss the ultra vires and unlawful acts of the 1st -3rd defendants and the nomination of new members of 8th defendant council, but the efforts have been frustrated by the 1st -7th defendants.
Plaintiffs have therefore on the 1st December, 1998 issued a writ of summons claiming from the defendants as follows-
(a) A declaration that the tenure of the 1st -3rd defendants as President, Vice-President and Treasurer respectively of the 8th defendant expired by effluxion of time on 26th June, 1998.
(b) A declaration that the continued occupation of the 1st -3rd defendants as President, Vice-President and Treasurer respectively of the 8th defendant is illegal, null and void.
(c) An order of perpetual injunction restraining the 1st -3rd defendants from parading themselves or purporting to act as council members of the 8th defendant from the 27th day of June, 1998.
(d) An order cancelling and declaring all acts, decisions and programmes planned or purportedly carried out by the 1st -3rd ‘, defendants as President, Vice-President and Treasurer from January, 1999 ultra vires and void.
(e) An order that the 1st -3rd defendants render an account of all income and expenditure of the 8th defendant Association of National Accountants of Nigeria from 27th day of June, 1988 till the date they hand over the affairs of the association.
(f) A declaration that the tenure of the council of the 8th defendant constituted at the Annual General Meeting of 29th January, 1994 expired on the 19th January, 1997 and order appointing (7) Financial members of the 8th defendant as interim caretaker to conduct Annual General Meeting where a new council will be constituted not later than (six) months from the date of the order.
It is relevant to point out that plaintiffs/appellants had obtained ex parte interim order on the 18/12/98 restraining the 1st -3rd respondents inter alia from parading themselves as President, Vice-President and Treasurer, respectively of the 8th respondent. The application of the 1st-3rd respondents to discharge the interim order was refused. The court went on to grant an interlocutory order in favour of the appellants restraining the 1st -3rd respondents from summoning any meeting special or otherwise until the determination of the interlocutory injunction. Plaintiffs/appellants filed and obtained an interlocutory injunction restraining the 1st -3rd defendants from acting as and/or parading themselves as President, Vice President and Treasurer respectively of the 8th defendant pending the determination of this suit.
The Court of Appeal allowed the appeal of the 1st -3rd, defendants against this interlocutory order on the 24th January, 2000. Plaintiffs have now appealed against the judgment of the Court of Appeal. The situation now is that the parties are in the position in which they were at the filing of the writ of summons.
I have already set out the prayers in the plaintiffs/appellants’ motion of the 30th August, 2000. I have also stated the claim of the plaintiffs/appellants against the 1st -3rd and 8th defendants. The grounds relied upon by 1st -3rd, defendants in their motion to strike out the prayers is that the reliefs now sought are entirely new and were not sought in the trial court and neither in the Court of Appeal. It is also contended that injunctions are not granted in respect of a completed act. On the other hand learned counsel to the plaintiffs/appellants, the respondents to this preliminary objection argue that their prayers are within their claim, and that in any event they are allowed by the rules to raise a fresh point even at this stage. The issues involved concern matters of good and effective judicial administration of justice. The juridical basis whereby an ancillary relief not within the scope and purview of the claim before the court could be entertained and the nature of the equitable remedy of interlocutory injunction are matters raised in the determination of this application.
It is settled law which does not require citation of decided cases that any application for relief subsequent to the claim before the court shall be within the purview and scope of the claim. This is because a plaintiff is limited by his claim as expressed in his writ of summons and statement of claim. Any departure from the claim so endorsed and to make a new claim gives rise to a new cause of action in respect of which the jurisdiction of the court has not been invoked by the institution of an action. The jurisdiction of the court is determined by the claim of the plaintiff. This is why any ancillary relief must fall within the scope of the claim in the substantive action.
A careful study of the claim of the plaintiffs/appellants clearly discloses that the claim in the action was confined to determination of the tenure of the 1st-3rd defendants; the illegality of their continuation, the injunction restraining them from parading themselves as members of the 8th defendant council. There are also orders cancelling the acts and decisions of 1st -3rd defendants, and for them to render account of all income and expenditure of the 8th defendant; and a declaration of the expiration of the tenure of the 8th defendant council and appointment on member caretaker council within six months. These were the specific claims in the writ of summons and statement of claim.
There seems to be no doubt that none of the prayers in the motion of the plaintiffs/appellants dated 30th August, 2000 reproduced above falls within the purview of the claims outlined. Accordingly the reliefs sought in the prayers cannot be said to arise from or related to the claim before the court. The purpose of the reliefs in the prayers is to ensure the maintenance of the claim pending the determination of the substantive claim which is the subject matter for determination before the court.
The prayers sought in the motion of the plaintiffs/appellants is an injunctive relief seeking to restrain the 1st -3rd defendants in respect of the matters stated in the prayers. An injunctive relief is effected by way of an injunction. An injunction is an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act. A claim for an injunction is a claim in equity.
The order for injunction is available to restrain the defendant from the repetition or the continuance of the wrongful act or breach of contract complained of-See Egan v. Egan (1975) 2 All ER 167. It is generally granted to protect a legal right which is in existence – See Union Beverages Ltd. v. Pepsicola International Ltd. & Ors. (1994) 3 NWLR (Pt. 330) 1 SC. This is with the object of keeping matters in status quo until the question at issue between the parties is determined. Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 Odumegwu Ojukwu v. Lagos State Government (1986) 3 NWLR (Pt. 26) 39. The applicant must show that he has sufficient interest in the reliefs sought – See Abiodun Akerele v. Chief Obafemi Awolowo & Anor. (1962) WNLR 220,224. Hence in an ancillary relief which the application subject-matter of this preliminary objection, is, the relief must fall within the purview of the claim. This is because the remedy is for the protection of the claim, that is an injury which may be occasioned by the violation of applicant’s right in respect of which he will not be adequately compensated in damages – See Daniel Ogbonnaya & Ors. V. Adapalm Nigeria Ltd. (1993) 5 NWLR (pt. 292) 147.
The remedy is certainly not available to parties in respect of issues not raised in the action or matters not directly related to the issues raised- See Akibu &Ors. v. Munirat Oduntan (1991) 2 NWLR (Pt. 171) 1 at 10.The application by the plaintiffs/appellants seeking for injunctive orders is clearly not within the claim and not directly related to the claim. The application therefore cannot be for the protection of a right before the court, which may be violated, unless the application was granted.
Furthermore, since the reliefs sought are not in respect of or directly related to a claim before the court, the court is without competence and jurisdiction to hear it, since it is not in respect of a claim before it. – See Madukuolu & Ors. V. C Nkemdilim & Ors. (1962) 2 SCNLR, 341 (1962) 1 All NLR 587. It is therefore in such a circumstance unnecessary to inquire into the existence of a legal right enabling the grant of the relief.
I agree with Mr. C. O. Akpamgbo, SAN, that the 4th-7th defendants who are respondents in this appeal, and having not filed a cross-appeal, cannot be heard in support of the plaintiff’s motion. They, having not made any claims against 1st -3rd and 8th defendants, lack standing in respect of the reliefs sought. These above stated are the reasons why I upheld the preliminary objection by the 1st – 3rd and 8th defendants to the motion of the plaintiffs/appellants dated 30″ and filed 31st August 2000, and struck out the motion with N 1,000.00 costs to the 1st – 3rd defendants/respondents.
SC.43/2000
