Chief Godfrey K. J. Amachree V. International Cigarette Company Limited & Anor (1989)
LawGlobal-Hub Lead Judgment Report
AKPATA, J.C.A.
There is no hard and fast rule binding on the Court in exercising its discretion to grant or refuse an application for an interlocutory injunction. There are however useful guides and principles upon which the court acts. This appeal has raised these guides and principles.
At a meeting of the Board of Directors of International Cigarette Company Ltd. (trading as Philip Morris Nigeria) held at Lausanne, Switzerland on Thursday 16th January, 1986, the question whether one Farid EI Khalil should be appointed as the Company’s Managing Director caused a sharp disagreement amongst members of the Board. One group consisting or the Nigerian Directors led by Chief G. K. J. Amachree, who was until then the Chairman of the company, appeared implacably resolute against his appointment on the ground that such appointment would infringe the Nigerianisation and Training Policy of the Federal Military Government as contained in the Budget Speech of the President. The other group made up of the foreign Directors led by one Mr. Thoma, was, it seems, inflexibly determined to have Farid El Khalil appointed.
In view of the sharp division on the matter and the prevailing tense atmosphere, a motion for adjournment of the meeting was moved and seconded by two of the Nigerian Directors. A counter motion by Mr. Thoma which was also seconded was however carried by majority votes. As Chief Amachree and three other Nigerian Directors could not brook the attitude of Mr. Thoma and his colleagues they withdrew from the meeting in protest.
In the absence of the Chairman and the three Nigerian Directors, far reaching decisions were taken by other members resulting in;
(1) a change in the composition of the Board of Directors;
(2) increase in the number of Board members;
3) the appointment of Mr. Farid El Khalil as the Managing Director and
(4) the removal of Chief G. K. J. Amachree as Chairman. It was resolved that “the appointment of new Chairman” be inserted in the agenda for the next board meeting fixed for Tuesday 4th February, 1986, at the Lagos Sheraton Hotel, at 10a.m.
On 24th January, 1986, eight days after he was said to have been removed as Chairman in far away Switzerland, Chief Amachree as plaintiff instituted an action by a writ of summons at the Federal High Court, Lagos, against the company and Allen Northcott, Acting Managing Director, seeking the following reliefs:
“1. A declaration:
(a) That the resolution which the defendant Company passed on 16th January, 1986, at a Meeting of the Directors whereby it purported to remove the plaintiff as Chairman of the Defendant Company is ultra vires, null and void and of no effect.
(b) That the resolution which the Defendant Company passed on 16th January, 1986, at a Meeting of the Directors whereby it purported to appoint:
ANWA EL KHALIL
FEYSAL EL KHALIL
FARID EL KHALIL and
ALHAJI AMINU WALI
to be Directors of the Defendant Company is ultra vires null and void and of no effect.
(c) That the resolution which the Defendant Company passed on 16th January, 1986, at a Meeting of the Directors whereby it purported to appoint Farid El Khalil as Managing Director of the Defendant Company is ultra vires, null and void and of no effect.
- An injunction restraining the Defendant from appointing a new Chairman of the Company.
- An injunction restraining Anwa El Khalil, Feysal EI Khalil, Farid El Khalil and Alhaji Aminu Wali and each of them acting as Directors of the Defendant Company.
- An injunction restraining Farid El Khalil acting as Managing Director of the Defendant Company.”
On 28/1/86, the plaintiff filed a motion on notice for “an order for an interim interlocutory injunction restraining the defendants/respondents their servants and/or agents or otherwise howsoever from implementing the series of resolutions passed on 16th of January, 1986, or any of them until the H final determination of this action.” (word in italics mine). The application was supported by an affidavit of 21 paragraphs.
The application was not heard by the court until 8th April, 1986 because the parties had earlier informed the court that there was a move to resolve the matter in controversy out of court. After submissions by Counsel for the parties in respect of the application, in a reserved ruling dated 23rd April, 1986, the learned trial Judge Anyaegbunam, Chief Judge, dismissed the application.
Against the decision, the plaintiff filed the following grounds of appeal.
“(i) The decision is against the weight of evidence.
(ii) The learned trial Judge erred in law and thereby came to a wrong decision occasioning serious miscarriage of justice by holding that the maxim “valenti non fit injuria” applies considering the consequences of the plaintiffs action.
(iii) The learned trial Judge erred in law and on the facts by holding that the removal of the plaintiff as Chairman could come under “Any Other Business.”
(iv) The learned trial Judge erred in law by holding that the plaintiff would not suffer if an injunction was not granted due to the fact that no proprietory loss was shown, having regard to the fact that the plaintiff’s fundamental human right of a fair hearing was infringed.
(v) The learned trial Judge erred in law by holding that in the present Military administration, only the Armed Forces Ruling Council has any authority to make law, having regard to Sections 2 and 3 of the National Economic Emergency Powers Decree 1985.”
In this Court briefs were filed and exchanged. Although counsel for the appellant made efforts to frame issues for determination in the appeal, the issues were not, with due respect, properly formulated. Brief writing is an innovation in the Supreme Court and the Court of Appeal, more recently so in the latter. There are so many authorities relating to filing of briefs and the formulation of issues relevant to the appeal. It is apt, I think, to refer to the observation of my learned brother, Achike J.C.A. in Gaamstac Eng. Ltd. and Another v Federal Capital Development Authority (1988) 4 N.W.L.R. (Part 88) 296 at 305. He had this to say:
“Brief writing is an art and calls for thorough mastery of the case in hand. But even when counsel is thoroughly and comfortably at home with the facts of the case and the appropriate law that would be invoked for the proper determination of the case, he is yet confronted with another hurdle. He has to express himself in his brief within the mandatory format provided under the Rules for writing of Briefs; in particular, he has to postulate or formulate the issues for determination which, of necessity, must relate to the existing grounds of appeal filed in respect of the appeal. Many practitioners excel and have become masters in the methodology of brief writing by sheer dint of hard work and constant practical application and exposure to writing of briefs in the course of their professional duties. But, as may be expected, many more legal practitioners are yet to show budding knowledge, not to mention a reasonable grasp, of the task of brief writing. Today, mastery of brief writing is mandatory to all legal practitioners who seek audience in the Supreme Court and the Court of Appeal in this country.”
The only issue formulated by respondents’ counsel which learned counsel for the appellant adopted at the hearing of this appeal reads:
“Whether the learned trial Judge’s exercise of his discretion in dismissing the appellant’s application for interim injunction was proper having regard to the circumstances of the case.”
In considering whether to grant an interlocutory injunction, the application must be considered on its peculiar facts as disclosed in the affidavit evidence. It is difficult to lay down any hard and fast rule which must guide the court in the exercise of its discretion. However, in John Holt Nigeria Limited vs. Holts African Workers Union of Nigeria and Cameroons (1963) 1 All N.L.R. 379, the Supreme Court set out the principles upon which the court acts in granting interlocutory injunctions when it said at page 383:
“The principles upon which the Court acts in granting interlocutory injunctions to our mind must be strictly observed, and of course it is impossible to lay down any general rule by which the discretion of the Court ought, in all cases, to be regulated; but it must be borne in mind that interlocutory injunctions are not granted as of course. It appears to us that what the plaintiffs have asked for in this matter is for the Court to prevent the defendant; from carrying all their business in the manner they think it beneficial to themselves, and this before the trial of the action.”
In Obey” Memorial Specialist Hospital v. Attorney General of the Federation and Anor. (1987) 7 S.C. 52 at page 73, also (1987) 3 N.W.L.R. (Part 60), 325 at page 338. Obaseki J.S.C. observed thus:
“The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if upon that incomplete untested evidence the court evaluated the chances of the plaintiff’s ultimate success in the action at 50 per cent or less but permitting its exercise if the court evaluated his chances at more than 50 per cent.”
In the case of Cesare Missini & Ors. v. Michael Balogun & Anor (1968) 1 All N.L. R. 318 at page 324, the Supreme Court adopted with approval the dictum of Lord Cottenham L.C. in Hilton v. The Earl of Granville 184 Cr. and ph. 283 at page 297 that:
“I have to determine, whether, balancing the question between these two parties, and the extent of inconvenience likely to be incurred on the one side and on the other, it is the most proper exercise of the jurisdiction of the court to grant the injunction or to withhold it. Now, by withholding it, I certainly may expose the plaintiff not only to damage, but to an injury and a wrong; by granting ii, on the other hand, I am exposing the defendant to what, in the event of my turning out to be mistaken in the view I take of the rights of the parties, will be an irreparable injury. The plaintiffs injury, if he sustains it, and ought not to have sustained it, will be, to a great extent at least, capable of reparation; it is a mere question of the value of the property, which may be compensated, whereas, by no possibility can the injury done to the lord be compensated, if he is prevented for a considerable length of time from exercising a right which, in a certain event may-turn out to be his to the full extent to which he claims it.”
What the court has to consider therefore in an application for an interlocutory injunction is the balance of convenience and the need to reduce any damage that may arise in granting or refusing the application to the barest minimum. In effect if for instance granting an injunction may expose the defendant to damage for which he can be compensated but refusing it may expose the plaintiff to irreparable damage, the injunction should be granted. (See Ladunni v Kukoyi (1972) 3 S.C. 31).
Before considering the question of balance of convenience, all that the Judge has to consider at that stage is whether the plaintiff has made out a prima facie case, that is, that there is a substantial issue to be tried. (See John Holt (Nig.) Ltd. vs. Holts Workers Union of Nigeria and Cameroons (supra) ). A Judge should avoid the temptation of deciding the principal issues in the substantive case. If he does, his decision will definitely be prejudicial to the determination of the substantive case by him.
In the case of Cyanamid v Ethicon Limited (1975) A.C. 396 at page 407, Lord Diplock, in the English House of Lords, emphasised thus:
“It is no part of the courts function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial”
Also in the case of Egbe v Onogun (1972) 1 All N.L.R. 95 at page 98, the Supreme Court made the point that in considering an application for an interim injunction or interlocutory injunction, as distinct from a perpetual injunction, it is not open to the court to determine at that stage the legal right the violation of which is the subject-matter of the claim in the summons with out having had the benefit of the pleadings and the evidence to be adduced by either parties.
In the instant case, the learned trial Chief Judge in dismissing the plaintiff/appellant’s application had this to say:
“It is on the strength of this that the President made his far-reaching Budget declarations. It is a statement of very high policy which should be respected by all and sundry, but that notwithstanding it has not got the force of law. In the present Administration, it is only the Armed Forces Ruling Council that has the power to promulgate decrees which are signed by the President, see Section 3(1) of the Constitution (Suspension and Modification) Decree 1984…
“It is admitted by all that after the Chairman and his group had walked out, that a quorum was still maintained and one would say that the meeting was properly continued as it was not closed.
The Plaintiff/Applicant on his own walked out. He cannot complain for what happened in his absence. …
One fact is clear as shown in Exhibit B paragraph 86/67. No one sent the Chairman out of the meeting. He left on his own volition. Volenti non fit injuria. …..
The other six Directors who voted for the continuation of the meeting stayed, elected a new Chairman and continued the meeting and took the decisions now complained of. I hold that the Board was properly constituted and it acted within its powers…
Mr. Arthur-Worrey in his submission stated that the Agenda for the meeting of the 16th January, 1985, Exh.A, does not contain the removal of the Chairman and that the removal of the Chairman cannot come under any other business. I agree that it does not specifically come under the Agenda, but i would not subscribe to the view that it would not come under any other business. Something unusual happened at the meeting and the meeting took a step which they feel would meet the situation. The Chairman and his group unceremoniously abandoned the meeting. It is an act which had arisen ex-improviso and the Board showed their resentment by acting the way they did. All these are internal affairs of the Company.”
It is obvious to me that the question whether the Nigerianisation and Training Policy Statement in the President’s budget speech has the force of law is a matter to be determined in the substantive case. By saying that it has not the force of law, the learned trial Chief Judge was saying in effect that the election of Farid El Khalil was valid and that it did not run counter to the law of the land. This finding of the trial Judge to my mind is highly prejudicial to the trial of the substantive case. Also for him to pronounce that “the meeting was properly continued as it was not closed….
…..the plaintiff/applicant on his own walked out. He cannot complain for what happened in his absence” also has the same effect. The court was dismissing in advance the three declaratory reliefs sought by the plaintiff/appellant in the substantive case, one of which is that his removal as Chairman is ultra vires, null and void and of no effect. It was premature for the trial court to hold that “the board was properly constituted and it acted within its powers.”
True enough the learned trial Chief Judge appeared to come round to consider what was relevant to the application when he said:
“I have not been shown any inconvenience the plaintiff/applicant will suffer if the defendants/respondents are not restrained from carrying out the decisions they took at the meeting of the 16th of January, 1985. The plaintiff has not shown any proprietary loss or any infringement of any of his rights whatsoever. The 1st defendant/Company on the other hand would be paralysed if the respondents were stopped from performing their functions as the Board of Directors.”
The fact, however, is that the learned trial Chief Judge came to the conclusion that the appellant had not shown any inconvenience he would suffer if the respondents were “not restrained from carrying out the decisions they took at the meeting of the 16th of January, 1986” because he had already held that the decisions were valid.
In holding that the first defendant/company would be paralysed if the respondents were stopped from performing their functions as the Board of Directors, the learned trial Chief Judge appeared not to have grasped the full import of the application. The plaintiffs application was to the effect that he and others who were members of the board prior to the decisions of 16th January, 1986 should continue to perform their functions until the determination of the substantive case. Obviously, if the learned trial Chief Judge had made an order that the plaintiff and his colleagues should continue as Chairman and members of the Board of Directors, the first defendant company would not have been paralysed.
In sum, therefore, not only did the learned trial Chief Judge apply the wrong principle in determining the application, he had a misconception of the import of the application before him. The result is that the appeal succeeds. The decision of Anyaegbunam, C. J., dismissing the plaintiffs application is set aside. It is however my view that it will serve no useful purpose to order that the application be heard by another Judge. The havoc, if any, the plaintiff/appellant had sought to prevent would have been done by now.
The justice of the case will be met if the hearing of the substantive case is accelerated. In the circumstance I order, if pleadings have not already been filed, that the plaintiff files his statement of claim within 21 days from today and the defendants to file their statement of defence also within 21 days on being served with the statement of claim. The present Chief Judge of the Federal High Court or any Judge of that court that may be assigned by him should give the substantive case an accelerated hearing. Costs of the appeal is assessed at N350.00 in favour of the plaintiff/appellant.
Other Citations: (1989) LCN/0063(CA)
