Dr. Inih A. Ebong V. E. G. Ukana & Ors (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A. 

This appeal is against the ruling of the lower Court on a motion for an interlocutory order to restrain the Respondent from further infringement on the appellant’s right to fair hearing filed on 27/2/02 and a motion to compel the respondents to withdraw letters Nos. UU/REG/S/15/S.1/366 of 18/12/02 and UU/REG/76/Vol.l/52 of 28/8/02 and an order to restrain the respondents “from obstructing, harassing, threatening, intimidating and/or victimizing the applicant in any manner or form whatsoever and howsoever in the performance of his duties, pending the hearing and determination of this suit.

The parties filed written argument for the two motions together.

In its ruling of 4/4/07 the Court below expressed the view that granting the motion filed on 12/1/06 will have the effect of determining the substantive application filed on 9th October, 2001 and ordered that

“This application will be considered on the merit along side the motion on notice filed on 9th October, 2001.”

See page 297 of the records.

Aggrieved by the said ruling the appellant filed a notice of appeal on four grounds, from which he distilled the following four issues for resolution by the Court:

“ISSUE 1: Whether the trial Judge was right when he held that the fact constituting the applications of 9th October, 2001 and 12 December, 2006 is the suspension of the Appellant by the Respondents as Senior Lecturer in the Department of Theatre Arts, University of Uyo (Ground One).

“ISSUE 2: Whether the trial Judge was right in not deciding the interlocutory motion of 12th December, 2006, on its merit but adjourned same to be decided along with the substantive suit (Ground Two)

“ISSUE 3: Whether indeed the grant of the motion of 12th December, 2006 has the effect of granting the substantive application of 9th October, 2001 (Ground three).

“ISSUE 4: Whether the ruling of the lower Court made on 4th day of April, 2007 was not against the weight of affidavit evidence adduced at the hearing (Ground four).”

In his brief of argument learned Counsel for the Respondent contended that the lone central and/or cardinal issue for determination is:

“Whether the learned trial judge was right in holding that in so far as the granting of interlocutory motion on notice filed on 12th December, 2006 would in fact have the effect of granting the substantive application filed on 9th October, 2001, the Courts are not allowed to decide the substantive matter in an interlocutory application.”

In his argument in his brief learned Counsel for the Appellant contended that the facts of the two applications are not the same.

He emphasized that the substantive application of 9th October, 2001 complained of denial of fair hearing by stopping the appellants salary without a hearing whereas the motion of 12th December, 2006 seeks for orders against suspension and later termination of the appellant’s appointment while a motion for interlocutory injunction was also pending. Learned Counsel submitted that there is a world of different between stoppage of salary and suspension from duty as well as termination of appointment, adding that the affidavit evidence in both applications were not the same. He argued that the learned trial Judge was in error in holding that the background fact of both motions is the suspension of the appellant from duty, adding that at the time the salary of the appellant was stopped he was neither suspended from duty nor was his appointment terminated.

In issue 2 learned Counsel said the motion of 12th December, 2006 was for mandatory orders to compel the respondents to return to status quo. He maintained that a Court must dispose of all outstanding interlocutory applications before proceeding to hear and determine the substantive suit and that failure so to do is a denial of fair hearing. He relied on AFRO CONTINENTAL v CO-OPERATIVE ASSOCIATION (2003) 105 LRCN 513, M.M.S. LTD v OTEJU (2005) 128 LRCN 1506, EKE v. OGBONDA (2007) 144 LRCN 395. He argued that the trial Court was in error not to have decided the application of 12th December 2006 one way or the other.

In issue 3 he said the substantive motion on notice sought a remedy against infringement of right to a fair hearing whereas the motion of 12/12/06 sought to return to status quo ante with regards to the suspension of the appellant and the subsequent termination of his appointment. He contended that the affirmation of the motion of 12/12/06 will not dispose of the substantive motion. He said the respondents resorted to self-help and it is the duty of the Court to undo what was done wrongly. He said the motion for mandatory orders is independent of the relief sought in the substantive suit. He relied on: GOVERNOR OF LAGOS STATE v. OJUKWU (1986) ALL NLR (PT.)194 AT PAGES197, 199, 200, 201, 202 AND 203; REGISTERED TRUSTEES APOSTOLIC CHURCH v ALOWONLENI (1990) 6 NWLR (PT. 158) 514 AT 519 -520, DOMA v OGIRI (1998) 3 NWLR (PT. 541) 246- 270, FATB v EZEGBU (1993) 6 NWLR (PT 297) 4. He urged the Court to resolve issue 3 in favour of the appellant.

In issue 4 learned counsel referred to the affidavit evidence consisting of appellant’s 15 paragraph affidavit in support of the motion to which Exhibits A – F were exhibited, a further affidavit of 6 paragraphs with three exhibits marked G, H and I as well as the Respondent counter affidavit of 13 paragraphs admitting all the facts in the appellant’s affidavits. He said that the lower Court’s ruling did not reflect a consideration of the depositions and admissions of the parties and not based on any precedent. He urged the Court to invoke Section 16 of the Court of Appeal Act to decide the motion for mandatory orders on its merit. He relied on STATE v AJIE (2008) LRCN 2513 at 2517. He urged the Court to allow the appeal.

In the lone issue in his brief learned Counsel for the Respondents conceded that the substantive motion of 9th October, 2001 and the motion on notice filed on 12/12/06 do not have the same substratum such that a decision on one will be a decision on the other. He stated, however, that the application of 12/12/06 relates substantially with the substantive suit so much that the granting of the mandatory orders would definitely have the effect of deciding the substantive suit. He said the Respondent stated that his suspension from duties by the Respondent was the cause of action in Suit No. FHC/UY/CS/126/2001 filed but did not disclose that the said suit was struck out by the Court in appeal No. CA/C/71/2004 on 25/4/2006. He said the appellant sought, in prayer one of the motion of 12/12/2006 to resurrect the issue of suspension from duties already disposed of in Appeal No. CA/C/71/2004 on 25/4/2006. He referred to the substantive Suit of 7th October, 2001 which is a complaint against the stoppage of the appellant’s salary and stated that the salary stopped was restored from September, 2001. He referred to the substantive Suit No. FHC/UY/CS/144/2003 challenging the termination of the appellant’s appointment and argued that the lifting of the order suspending the appellant and revoking the letter of termination of the appellant’s appointment would amount to deciding the substantive suit. He referred to C B N v. AHMED (2001) 87 LRCN 2035. He relied on A-G ANAMBRA STATE v. OKEKE (2002) LRCN 1540 AT 1565 to the effect that a Court dealing with preliminary or interlocutory matters should not make a pronouncement, which would prejudice the main suit. He relied on OLANIJI v. ANAYOHAM (1991) 4 LRCN 1271, JABRE v. JABRE (1999) 3 NWLR (pt.599) 66 which applied ILOHOJE v. CBN (1989) 1 NWLR (Pt.98), among others. He contended that the lower court was right to have declined determining the interlocutory motions, which would involve a determination of the substantive matter. In conclusion learned Counsel for the Respondents said the lower Court was right to have restrained from deciding the substantive matter at an interlocutory stage. He contended that this is not a proper case to invoke Section 16 of the Court of Appeal Act and urged the Court to dismiss the appeal.

In his reply brief learned Counsel for the appellant argued that the substantive suit for the purpose of this appeal is FHC/UY/CS/86/2003 and not FHC/UY/CS/144/2003 as claimed by the Respondents in their brief of argument and urged the Court not to speculate on an issue not in the records. He relied on: ALI v. ALESINLOYE (2000) 77 LRCN742 AT 757, TEXACO v. SHELL PETROLEUM (2002) 94 LRCN 152 AT 157, GONZEE (NIG.) v. NERDC (2005) 128 LRCN 1540 AT 1542. Counsel referred to the concession by the Respondents that the relief in Suit No. FHC/CA/CS/110/2000 now FHC/UY/CS/86/2003 and the motion of 12/12/06 are not the same and argued that having made the said concession the Respondents cannot now rely on Suit No. FHC/UY/CS/144/2003.

Counsel also argued that FHC/UY/CS/126/03 raised by the Respondents is a fresh issue not borne out of the records. As for the alleged restoration of the appellant’s salary in September, 2001 Counsel said that on December 18th, 2001 the Respondents suspended the appellant’s indefinitely from duties and on 28th March, 2002 terminated his employment. He relied on DANIEL v. FEERGUSON (1891) 2 CH.27, GOV. OF LAGOS STATE v. OJUKWU (supra). Among other issues learned Counsel said the Respondent characterised issue 4 in his brief as “worthless and mere rant, which ought to be ignored but failed to show what makes it worthless and/or why it should be ignored. He said the Respondent attempted to mislead the Court in their brief by giving the dates 9th October, 2001, 9th October, 2003 and 9th October, 2006 as the date the substantive suit was filed. For the avoidance of doubt, he said the suit was filed on 9th October, 2001

Issue two in the appellant’s brief corresponds essentially with the lone issue framed by the respondent except that the respondents issue includes a matter still in contention between the parties, that is the assertion that granting the interlocutory motion on notice filed on 12th December, 2006 would in fact have the effect of granting the substantive application of 9th October, 2001. Appellant’s issues 1, 3 and 4 are subsumed in issue 2 and I adopt the said issue 2 in the determination of the appeal.

The two motion involved in this appeal are (1) Motion on notice filed on 9/10/2001 pursuant to the leave granted the appellant to apply to enforce his fundamental rights. He asked for a declaration that the stoppage of his salary is a violation of his rights under Section 36(1) of the Constitution as well as injunctive reliefs and damages for alleged violation of his rights. See paragraphs 1, 14 and 15 of the records.

(2) The second motion was filed on 12/12/2006. The reliefs are

(i) Mandatory order to withdraw letter Nos. UU/REG/S/15/S.1/366 suspending the applicant from duty; and letter No. UU/REG/76/VOl.1/52 of 28/3/02 terminating the appointment of the applicant and an order to restrain the respondents from enforcing the contents of letters.

In the motion exparte filed on 1/9/01 of the appellant, in addition to the leave he sought to enforce his fundamental rights also asked for “an order that the grant of leave shall operate as a story of all actions by the Respondents in connection with the complaint of the applicant.”

See page 2 of the records.

In its ruling dated 3/11/02 the Court below ordered that other reliefs sought shall be considered only on “motion for same made on notice to the Respondent.” See page 14 of the records. In my view, the reliefs in the motion of 12/12/06 fall with in “all actions by the Respondents in connection with the complaint of the Applicant”. The ruling of the lower Court in respect of that relief to the effect that other reliefs shall only be considered on a motion for same is in effect saying that the other reliefs will be determined in the motion on notice filed pursuant to the order of the Court. It follows that all other reliefs in connection with the appellant’s complaint should have been included in the motion on notice pursuant to the order of the trial Court. The order did not mean that the appellants should file different motion for different reliefs but since he had filed a separate motion for relief in connection with his complaint in his ex parte motion the Court was right in its ruling that the application be considered along with the motion on notice filed on 9/10/01. This is in line with the ruling of the Court in the ex parte affidavit. In fact, the reliefs in the motion of 12/12/06 fall within relief NO.2 in the appellant’s motion of 9/10/2001, that is “Perpetual injunction restraining the Respondents … from further infringement of the Appellant’s aforesaid rights”. In the circumstances, a determination of the reliefs in the motion of 12/12/02 would be a determination of relief NO.2 in the application on notice of 9/10/01. The motion on notice Wed on 12/12/06 is an interlocutory application as held by the trial Court. And since the determination of the said motion will involve a pronouncement on the merit of the main case (i.e. the motion on notice filed on 9/10/01 pending the determination of which the relief was sought), the trial Court was right to have adjourned the matter to be determined along with the main motion on notice filed on 9/10/01.

The motion on notice was filed on 9/10/01. It is yet to be determined. I think the appellant should have concentrated on his main application instead of splitting issues arised from his complaint in the main suit and demanding separate rulings on them even when such ruling will involve “actions by the Respondent in connection with the complaint of the Appellant.”

Multiplicity of action, be it in the main suit or interlocutory applications ought to be avoided. See OKORODUDU v. OKORODUDU (1977) SC 21, SARAKI v. KOTOYE (1992) 9 NWLR (PT.264) 156 AT 188, ARUBO v. AIJELERU (1993) 2 KLR 72.

In the final analysis, the appeal lacks merit and it is hereby dismissed.

I make no order for costs.

Other Citations: (2008)LCN/2988(CA)