Mr. D. O. Orji V. Zaria Industries Ltd. & Anor. (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

The appellant as plaintiff filed a Writ of Summons against the respondents as defendants in the Judicial Division of the Kaduna State High Court asking for the following reliefs –

“The Plaintiffs claim as against the defendants jointly and severally is for:

1. A declaration that the letter of termination from the 1st defendant dated the 6th of June 1988 and issued under the authority and hand of the 2nd defendant is wrongful void and of no effect in that the said letter and the decision to terminate the plaintiff;

(a) contrary to the rules of natural justice especially as guaranteed under section 33 of the 1979 Constitution.

(b) Ultra-vires.

(c) Capricious

(d) Malafide and

(e) An abuse of power.

2. A declaration that the letter of termination dated the 6th of June, 1988 issued under the hand of the 2nd defendant for the 1st defendant is contrary to the 1st defendant’s rules and regulations for employees and is therefore null and void.
3. A declaration that the aforesaid letter of termination is contrary to the plaintiff’s memorandum of appointment as contained in his letter of appointment dated 28th June 1976.
4. A declaration and an order that the plaintiff holds and still maintains a permanent and pensionable appointment in the designation of Assistant General Manager (Finance) in the employment of the 1st defendant.
5. A declaration and an order that the plaintiff be reinstated to his former office and be paid his benefits as herein below enumerated.

(i) salary at the monthly rate of N1420 per month from June 1988 until judgment is delivered in this suit.

(ii) Leave and other miscellaneous allowances as computable by the defendant’s rules and regulation.

6. An order of injunction restraining the defendants either by themselves or through their servants, agents and privies from enforcing or purporting to enforce the terms of the aforesaid termination or relying on the alleged facts as contained in the said letter of termination in the determination of the plaintiff’s employment.

ALTERNATIVELY

7. (a) The plaintiff claims in the alternative that he is entitled to be paid 1 1/2 months salary for each of the 12 years of completed service that he rendered to the company.

(b) Sundry claims.

(c) N50,000.00 General damages.”

The Writ of Summons together with the Statement of Claim and the Motion on Notice for an order of interim injunction were apparently filed on the same date and subsequently served on the Defendants /Respondents.

On 21st June, 1988 learned counsel presented their submissions for and against the interim relief being sought. The learned trial judge, in a considered Ruling delivered on 28th July, 1988 concluded-

“Having considered the submissions of both learned counsel in the light of the affidavit before this court as well as the cases cited by counsel, I have no doubt whatsoever that the plaintiff/applicant has established that he has a prima-facie case pending before this court. However, in granting an interim injunction of this nature, the balance of convenience between the parties is of paramount importance, and in considering this, one must also bear in mind the length of time it will take to finally dispose of the substantive matter now pending before this court. It is true that as deposed to by the applicant in his affidavit that both himself and his family will suffer great inconvenience, if the injunction is not granted. But can this inconvenience not be adequately compensated for in damages There is nothing before me to show that this inconvenience is beyond compensation through damages should the plaintiff/applicant succeed at the end of the day. In view of these considerations, therefore, it will not be judicious to grant the injunction. I find no merit in the application and it is accordingly refused and dismissed”.

Henceforth both the plaintiff and the defendants will be referred to in this judgment as ‘the Appellant’ and ‘the Respondents’ respectively.

Against the Ruling of the High Court, the appellant appealed to the Court of Appeal, Kaduna.

In the Court of Appeal learned counsel on both sides filed and exchanged brief of arguments on which they relied without making any further oral submission in elaboration of the briefs. The Court of Appeal considered the briefs and in a prepared judgment by Achike J.C.A, with which both Mohammed and Akpabio, J.J.C.A agreed, the learned Justice opined that-

“it has not been shown that the learned trial judge did not exercise her discretion judicially and judiciously”.

He accordingly dismissed the appeal with N350.00 costs to the respondents against the appellant.

Being not satisfied with the decision of the Court of Appeal, the appellant has now further appealed to this Court.

To appreciate the facts of the appellant’s case still pending in the High Court, I reproduce hereunder, the following paragraphs of his Statement of Claim which I consider relevant for this purpose –

“STATEMENT OF CLAIM

1. The plaintiff who resides at the 1st defendant’s staff quarters old Jos Road, Zaria at all material times to this action an employee of the 1st defendant with the designation of Assistant General Manager Finance on a basic salary of N17,040 per annum.
2. By virtue of the plaintiff’s designation he belongs to the top echelon of the 1st defendant’s administrative set up known as the Management.
3. The 1st defendant is a Kaduna State controlled Limited Liability Company registered under the Companies Act 1968 while the 2nd defendant is its Chief Executive and Principal Officer occupying the office of Managing Director.
4. The plaintiff hereby pleads that by virtue of the part 1 of the 1st defendant’s conditions of service the following persons are share holders.

NAMES Percentage of Sharesheld

(a) Kaduna State Government 40.95%

(b) Unitika of Japan 19.90%

(c) Michimen Corp of Japan 19.15%

(d) NIDB Bank 5%

(e) Y. Ahmed 10%

(I) A.D.K. Limited 5%

5. By dint of the Kaduna State’s controlling interest in the 1st defendant the plaintiff is a public servant in the Public Service of the Kaduna State Government.
6. The plaintiff’s career with the 1st defendant began on the 9th of August 1976 when he commenced as an Accountant on an initial salary of N5,760 per annum together with certain prerequisites which were explicitly stated in the letter of appointment dated the 28th June 1976.
7. While in the employment of the 1st defendant the plaintiff advanced impressively and was promoted vide authentic letters of promotion to the following posts.

(a) Senior Accountant (b) Ag. Chief Accountant and Assistant General Manager (Finance).

8. The plaintiff continued to carry out his duties efficiently until the 10th of March 1988 when an internal memorandum addressed from the office of 2nd defendant was received by the plaintiff, therein, the 2nd defendant disclosed that he was in receipt of a ‘strong petition’ calling for the plaintiff’s removal as a result of his involvement in the purchase of certain items at inflated prices (particulars will be given at the hearing) and that plaintiff should explain in writing.
9. On the 11th of March 1988 plaintiff promptly replied and gave explanations of his ‘alleged involvement’. Briefly he stated that the decision to purchase those chemical were taken solely by the then expatriate Chief Executive Mr. Nagoaka (now in Japan) and that he merely appended his signature to the L.P.O. as it was the policy of the company that such documents should be signed by 2 principal officers of the 1st defendant.
10. Further to this issue, on the 14th of March 1988 the 2nd defendant ordered the plaintiff to proceed on indefinite leave pending the outcome of complete investigation on the matter. The 2nd defendant in the aforesaid letter raised a new issue of the plaintiff being instrumental in the purchase of one bag of Urea at N1,250 when same was sold in the open market at N. The plaintiff was further prohibited from entering the Admin/Factory premises throughout the period of his suspension.
11. While on this purported suspension the plaintiff wrote a comprehensive memo on the issue of the purchase of chemicals and infact attached a letter written in the hand of Mr. Nagaoka addressed to the 2nd defendant in reply to queries raised by 2nd defendant in respect of the transaction and in this letter Mr. Nagoaka completely accepted responsibility of the cancelled L.P.O. and the new one and exculpated the plaintiff.
12. Inspite of these satisfying explanations the 2nd defendant maliciously continued to place the plaintiff on this illegal suspension and in fact ridiculously requested the plaintiff by a letter dated 24th of March 1988 to explain the contents of Mr. Nagoaka’s letter to which the plaintiff refused in an appropriate reply dated the 25th of March 1988.
13. The plaintiff did not leave the matter of his illegal suspension lying low but vehemently protested the shabby manner he was being treated. However, before contemplating legal action plaintiff documented the whole issue and reported to the Chairman of the 1st defendant for peaceful intervention.
14. X X X X X
15. Meanwhile, the plaintiff decided to wait for the board meeting but in the interim and precisely on the 12th of May 1988 the 2nd defendant again raised a fresh issue on the purchase of 15 tons of Vynil Tow and accused the plaintiff of raising Marine Insurance Certificate for the purchase of 15 tons of V/tow at a value of 87,750 on the 23rd of October 1987 and that the plaintiff negligently omitted to return the Insurance Certificate to the Insurers Niger Insurance Company and has by this omission caused the company substantial loss. The 2nd defendant then demanded for an explanation.
16. The plaintiff on the 19th of May 1988 tersely and appropriately replied the 2nd defendant and explained that the issuance and despatch of marine insurance certificates was the sole responsibility of the purchasing department and that since the 30th of April 1987 the 2nd defendant then designated “General Manager” had by way of a memo taken over all purchasing responsibilities of the 1st defendant from the plaintiff’s department. Consequently, all purchasing responsibilities including the despatch of marine certificates was the exclusive responsibility of the 2nd defendant.
17. Further to paragraph 16 the plaintiff avers that though he signed on the Insurance Certificate that procedure was merely to confirm that the value on the Insurance certificate was the same as that on form “A” and this was an audit procedure only. The duty of preparing and dispatching Insurance Certificates by emphasis lay with the purchasing department which is directly supervised by the Managing Director’s Office. The Senior Officer in Charge of purchasing is Mr. T. Okpokpo and it is his duty to prepare the covering letter and despatch same to the Insurance Company.
18. Curiously, however, the letter of termination stated that the 1st defendant’s board of directors resolved to terminate plaintiff’s appointment with immediate effect on the ground that no satisfactory explanation was provided by him about the insurance certificate and the loss to the company when the said board of directors did not afford the plaintiff an opportunity to explain and defend himself. The Plaintiff will at the hearing contend that in respect of all matters that led to his alleged termination he was denied a fair treatment (hearing)”.

With the Notice of appeal, the appellant filed five grounds of appeal. The appellant filed two separate sets of issues for determination in his brief. He however abandoned the first set consisting of three issues and were accordingly struck out. The other four issues he adopted are as follows –

“1. Whether it was a lawful exercise of the jurisdiction of the Court of Appeal to refuse or omit to consider the instant appeal on the basis of the findings of the trial court which had been duly appealed against and to introduce new matters and conjectures not taken into account by the trial court in the exercise of its jurisdiction, moreso as there was no cross-appeal or notice of intention to vary the reasons of the decision of the trial court

2. Whether the Court of Appeal properly considered and applied the principles relating to the grant of an order of interlocutory injunction having regards to the peculiar circumstances of this appeal
3. Whether from the facts of this instant appeal, the Court of Appeal was under “a duty to exercise its discretion in the appellant’s favour and grant the prayers refused by the trial court
4. In favour of whom i.e. between the disputing parties does the balance of convenience lie in this case and if the question is resolved in favour of the appellant, can an Order of interlocutory injunction be made in his favour

The respondent did not formulate any issues for determination in his brief; rather he replied to the appellant’s arguments going by the grounds of appeal seriatim. I therefore take it that he adopted the issues formulated by the appellant.

It is my humble view that the real and crucial issue for determination in this appeal is whether, having regard to the facts involved in this case and the admissible paragraphs of the appellant’s affidavit in support of his application, notwithstanding the fact that the respondent did not file any counter-affidavit to controvert the facts deposed to by the appellant therein, the Court of Appeal was right in its affirmation of the order of the trial court refusing the order for interlocutory injunction applied for by the appellant. Learned counsel further submitted that in dealing with an application for an interlocutory restraint order of this nature, the proper approach for the lower court “is to first and foremost consider the nature of the contract of employment between the parties, whether it is ordinary one or is laced with some special contractual statutory or constitutional flavour”. Having established that, the court is then to proceed to consider the nature of the alleged breach, whether it indeed raises a substantial question to be tried at the hearing and then to consider the question of balance of convenience, He cited and relied on Chapman v. Michaelson (1909) 1 Ch 238, Olaniyan & Ors. v. Unilag & Anor. (1985) 2 N.W.L.R. (Pt.9) 599 at 632. Hanson v. Radcliffe Udc (1922) 2 Ch. 490, Hill v. Parsons (1971) 3 ALL ER 1345 and 1350. Eperokun v. University of Lagos (1986) 4 N.W.L.R, (Pt.34) 162 at 173.

Learned counsel also attacked the opinion expressed by the learned trial judge that the appellant could not be imposed on the 1st respondent, an unwilling employer and submitted that by doing so, the learned judge had pre-emptively pronounced on the main issue without hearing the parties. He relied on Ojukwu v. Governor of Lagos State (1986) 3 N.W.L.R. (Pt.26) 39 at 45; Ukaegbu v. Attorney-General, lmo State (1983) 1 SCNLR 212 at 223B and Mortune v. Gambo (1979) 3 – 4 SC.54.

On the issue of delay relating to the equitable relief applied for since the cause of action arose, learned counsel contended that both the Writ of Summons, the interlocutory application and the statement of claim were filed in court on the same date to with 15th June, 1988, the very day the letter of termination of the appellant was written and served on him. He therefore submitted that the appellant was vigilant and showed zeal in pursuit of his constitutional right and that there was no tardiness or delay on his part. In support, learned counsel cited the case of Olaniyan & Ors. v. Unilag & Anor. (1985) 2 N.W.L.R. (Pt.9) 599 at 631.

In conclusion, learned counsel urged this court to allow the appeal, set aside the decision of both lower courts and grant the appellant’s prayer for interlocutory injunction with an order that the substantive suit pending before the trial court be transferred to another judge of same jurisdiction to guarantee a fair hearing for both parties.

In reply to the issues raised and argued by learned counsel for the appellant, learned counsel for the respondents contended that the central issue for determination in the case is damages for wrongful dismissal and submitted that the appellant had therefore to establish a prima facie case before he was granted the interlocutory relief he applied for and that since he did not do so, the trial court as well as the Court of Appeal was right in refusing his application. He further submitted that most of the paragraphs in the affidavit in support of the application were either legal arguments or conclusions and therefore contrary to Section 86 of the Evidence Act. He specifically referred to paragraphs 18, 21, 22, 23, 24, 25, 27 and 28.

An interim or interlocutory injunction is an equitable remedy granted by the court before the substantive question raised in the case is finally determined. Its object is to keep matters in status quo while the case is still pending. See The Military Governor of Lagos State v. Chief Emeka O. Ojukwu (1986) 2 Sc. 277; (1986) 1 N.W.L.R. (Pt.18) 621.

The court in deciding whether or not to grant an interlocutory injunction, shall be guided by the following considerations –

1. Serious issue to be determined with prospect of success.
2. Balance of convenience.
3. status quo as a proper remedy.

See John Holt Nig. Lt. v. Holts African Workers Union of Nigeria and Cameroons (1963) 1 ALL N.L.R. 379.

In the present case, I am of the opinion that having regard to the pleading filed by the appellant, as at the time the trial court heard the application for the interlocutory injunction, there is a serious question to be determined.

The next point to be decided is that of balance of convenience. The governing principle in considering this point is whether, in case the appellant succeeds in his claim, he could not be adequately compensated by award of damages against the respondents and that the defendant are financially in a position to pay the damages awarded.

In the affidavit filed by the appellant, nothing can be discerned therefrom that the present respondents will not be able to pay damages awarded in case the appellant succeeds in his claim, as this is a case where the appellant is alleging wrongful termination of his appointment. See Saraki v. Kotoye (1990)4 N.W.L.R. (Pt. 143) 144 in which Obaseki, J.S.C. referred with approval and cited an excerpt from the famous case of American Cyanamid Co. v. Ethicon Ltd. (1975) AC 396 at 408 wherein Diplock LJ stated the principles as follows –

“… the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and time of the trial. If damages in the measure recoverable at common law would be adequate and the defendant would be in a financial position to pay them, however strong the plaintiff s claim appeared to be at the trial, no interlocutory injunction should normally be granted” .

(Italics supplied for emphasis).

At this stage it is my view that it is immaterial whether or not the appellant asked for damages in the alternative to any other relief that he might have been entitled as the guiding principle is that where the damages in the measure recoverable at common law would be adequate and the respondents would be in a financial position to pay, the court will not grant the interlocutory injunction however strong the appellant’s case may appear to be. It is a matter weighing the balance of convenience in between the parties and each case will depend on its own circumstances and peculiarities.

I shall now consider the next point which is the balance of convenience. In support of this, the appellant relied on the following paragraphs of his affidavit-

“23. That from the letter “Exh A” it will be difficult for me to secure any future employment.

24. That if the defendant is allowed to enforce the directive in the letter of termination I shall suffer irreparable damage as my office would have been filled, my house and official vehicle allocated to some one else should the court find in my favour.
25. That it will not inconvenience the respondent to keep me in service pending the outcome of this suit.
26. …………………..
27. That my children all go to school in Zaria and the period will occasion substantial difficulty for them”.

It was the argument and submission of learned counsel for the appellant in support of this point that since the respondent did not file any counter-affidavit, the affidavit evidence by the appellant remains unchallenged and must therefore be taken by both the trial court and the Court of Appeal as correct and be given its full probative value and weight. In that stance, learned counsel further submitted the inconvenience how-beit slight had tilted the scale in favour of the appellant. He cited and relied on the following cases -NICON v. Power & Ind. Eng. Ltd. (1986) N.W.L.R. (Pt. 14) 1 at 27; Azeez v. The State (1986) 2 N.W.L.R. (Pt.23) 541 at 546, paragraphs B – D; and Obeya Memorial Hospital & Anor. v. A. G. Federation & B Anor. (1987) 3 N.W.L.R. (Pt.60) 325 at 343.

As earlier indicated in considering the issue of balance of convenience, the case of both sides must be taken into consideration. as the remedy being sought is not only equitable but discretionary. See Hiltion v. The Earl of Cranville(1841) CR & PH 283 wherein Lord Cottenham L.C. stated at page 297 as follows-

“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 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 it, 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 plaintiff’s 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 certain event, may turn out to belies to the full extent to which he claims it”.

Also on this same point of balance of convenience, in the Earl of Ripon v. Hobar (1834) 3 MYL & K 169, particularly at 179, Lord Brougham L.C. opined thus-

“If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, without waiting for the result of the trial … But where the thing sought to be restrained is not unavoidably and in itself noxious but only something which may according to the circumstances, prove so, the court will refuse to interfere until the mailer has been tried at law … ” (Italics supplied for emphasis).

In the present case the issue of nuisance likely to result in an irreparable damage to the appellant does not arise. It is simply a case involving allegation of breach of contract of service which may not be unavoidably noxious and may prove to be so, but in the circumstances of the case, to grant the interlocutory order sought by the appellant, will simply mean to expose the respondent to an irreparable injury that could not be compensated in damages. To do so will prevent the respondent from employing the services of another person to fill the vacuum created by the termination of the appellant’s employment which may have an adverse effect on its productivity and the goodwill it enjoys amongst its customers. In other words, the damage to the respondent would far outweigh that to the appellant.

Learned counsel also attacked the Court of Appeal in raising suo motu questions relating to the incompetency of certain paragraphs of the appellant’s affidavit and partly basing its decision on that without hearing counsel.

The issue of defective paragraphs of the affidavit was raised and argued by the learned counsel for the respondent and learned counsel for the appellant replied to that. It is true that the learned trial judge did not make a specific finding on this issue, but a general one. However, the learned justice of the Court of Appeal, seised of the whole record of proceedings before him, proceeded to consider the issue and made a specific finding. It is not, in my view, a case of raising a new issue suo motu, but a situation where the learned trial judge was vested with the power to do what he did by Section 16 of the Court of Appeal Act, 1976 which says in part-

“The Court of Appeal … Shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part … or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court …”.

See Also Order 3 Rule 23 of the Court of Appeal Rules, 1981 which vests the Court of Appeal with the same general powers. It states –

“The court shall have power to give any judgment or make any order that ought to have been made and make such further or other order as the case may require, including any order as to costs. These powers may be exercised by the court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may have not appealed from or complained of the decision”.

In this regard, the authorities cited and relied upon by learned counsel for the appellant are not opposite.The finding of the learned Justice of Court of Appeal that –

“Barring paragraph 28, I think the bulk of the paragraphs enumerated above appear to offend S. 86 of the Evident Act… “.

Cannot be faulted. His decision on the issue was not based on any extraneous matter but on the affidavit evidence and the other documents filed in support of the application. And as the learned Justice further stated-

“Shorn of these paragraphs, the remaining paragraphs of the affidavit would, in my view, leave the appellant in a hopelessly helpless stead of establishing favourable grounds for the grant of the interim injunction”

is fully justified.

The learned counsel criticized the learned trial judge by using the expression that “you cannot impose a willing employee on an unwilling employer”. But it was the same counsel that introduced the argument when he was making his submission before the learned trial judge in support of the application. That notwithstanding, it is the duty of the trial court, when dealing with interlocutory matters, to avoid making statement giving the impression that it has made up its mind on the substantive issue on trial before it. Justice must not only be done, but must be seen to have been done.

On the issue of passage of time of about nine months before the application was considered and ruled upon by the trial court, I entirely agree with the learned counsel for the appellant that such a delay was not caused by the appellant. The record shows that the appellant’s letter of termination was served on him on 15th June 1988 and on the same date, the writ, the statement of claim and the application for the interlocutory order were filed. The application was heard on 21st June 1988 and the Ruling refusing the application was handed down on 28th July 1988. There was a prompt appeal to the Court of Appeal, Kaduna which was filed on 4th August 1988 and the Court of Appeal delivered its judgment on 10th April 1989. The history of the case stated did not disclose any lack of diligence on the part of the appellant, in prosecuting the case. If the lapse of 8 months could be described as delay in this case, the fault was rather as a result of the process of the court before hearing and disposing of the appeal. This ground has merit see Olaniyan & Ors. v. Unilag (1985) 2 N.W.L.R. (Pt.9) 599 at 631 per Oputa, J.S.C.

The other issue which learned counsel raised is that since the Kaduna State Government holds the largest share of 40.95% of the total share holdings in the company, the appellant’s appointment has a statutory flavour and therefore a public officer. I am inclined to disagree with this submission. There is nothing to show that the conditions under which he was appointed are statutory nor that the post he was holding had any statutory import. The Kaduna State Government only holds the hugest number of shares but not the majority shares. The shares of other participants in the company added together are about 60% of the total share holding of the company. Mere participation of any government in a private company does not, ipso facto convert such a company into a public one. The facts and status of the present case are in no way comparable with Olaniyan and Ors. v. University of Lagos & Anor. (1985) 2 NWLR (Pt.9) 599. In the latter case the University was established by a statutory instrument to Wit University of Lagos Act and the procedure of removal of any of the academic and administrative officers of the University are provided in Section 17 of the Act. Both Olaniyan & ors, who sued the University were officers appointed in accordance with the provisions of the Act. They were at the time of their purported dismissal professional members of the University staff and therefore their appointments had statutory flavou. This grounds fails.

The conclusion by the Court of Appeal that –

“Now, on the question of convenience, I am obliged to heed the counsel of wisdom expounded by the Supreme Court, per Obaseki, J.S.C. in the leading case in this regard – Obeya case – where his

Lordship at p.338 opined:-

“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 evidence lies”,

Guided by the above proposition and the relevant paragraphs of the affidavit evidence alluded to above, and after cautiously weighing the needs and interests of the party against those of the others, I am clearly of the view, which, indeed, is in tune with the view expressed by the trial court, that there is no material before me to show that whatever inconvenience that may arise directly from the present act of the respondent cannot be adequately compensated by award of damages should the substantive case terminate in appellant’s favour”.,

cannot be impugned.

On the whole the appeal fails and it is accordingly dismissed. But since the learned trial judge had expressed a view on the substantive issue before it, it will be only fair and in the interest of justice to direct that the Chief Judge of Kaduna Stare should transfer the case to another judge within the jurisdiction to try the substantive issue.

Each party shall bear its own costs in this appeal.A. G. KARIBI-WHYTE, J.S.C: I have read the judgment of my learned brother Wali, JSC in this appeal. I agree with his reasoning and conclusion that the appeal should be dismissed. I also hereby dismiss the appeal.

I agree with the Order transferring the case to another Judge of Kaduna State to try the substantive issue.

I make no order as to costs.

S. M. A. BELGORE, J.S.C: I read in advance the judgment of my learned brother Akpata, J.S.C. and I agree with him. I adopt his reasons as mine in allowing this appeal. I make the same orders as contained in the said judgment.

E. O. I. AKPATA, J.S.C.: I am in agreement with my learned brother, Wali, J.S.C, that the appeal be dismissed. He has fully stated the facts of the case resulting in this appeal, including the averments in the pleadings of both parties in the substantive suits. For purposes of my judgment the pleadings will not be adverted to except paragraph 21 of the statement of claim wherein the plaintiff claimed against the first and second defendants as follows:

“1. A declaration that the letter of termination from the 1st defendant dated the 6th of June 1988 and issued under the authority and hand of the 2nd defendant is wrongful, void and of no effect in that the said letter and the decision to terminate the plaintiff;

(a) Contrary to the rules of natural justice especially as guaranteed under section 33 of the 1979 Constitution.

(b) Ultra – Vires.

(c) Capricious

(d) Malafide and

(e) An abuse of power.

2. A declaration that the letter of termination dated the 6th of June 1988 issued under the hand of the 2nd defendant for the 1st defendant is contrary to the 1st defendant’s rules and regulations for employees and is therefore null and void.
3. A declaration that the aforesaid letter of termination is contrary to the plaintiff’s’ memorandum of appointment as contained in his letter of appointment dated 28th June 1976.
4. A declaration and an order that the plaintiff holds and still maintains a permanent and pensionable appointment in the designation of Assistant General Manager (Finance) in the employment of the 1st defendant.
5. A declaration and an order that the plaintiff be reinstated to his former office and be paid his benefits as herein below enumerated.

(i) Salary at the monthly rate of N1420 per month form June 1988 until judgment is delivered in this suit.

(ii) Leave and other miscellaneous allowances as computable by the defendants rules and regulation.

6. An Order of injunction restraining the defendants either by themselves or through their servants agents and privies from enforcing or purporting to enforce the terms of the aforesaid termination on relying on the alleged facts as contained in the said letter of termination in the determination of the plaintiffs employment.”

The plaintiff, it would appear, filed simultaneously with the writ of summons and statement of claim a motion on notice praying for the following:

“i. An order of interim injunction restraining the defendants, either acting by itself, servants, agents or privies from carrying into effect the contents of the purported letter of termination dated the 6th of June 1988 and written and signed by the 2nd defendant purportedly terminating the applicant’s appointment as Assistant General Manager (Finance) from the 1st defendants employment pending the detem1ination of the substantive suit before this Honourable court.

ii. An order restraining the defendants either by themselves or through their servants, agents and privies from ejecting the applicant from the Company residential premises allocated to him or depriving him the use of company property commensurable to his status pending the determination of the substantive suit.

iii. And for any further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The plaintiff was in respect of prayer 1, in essence, asking for an interlocutory injunction not an interim injunction. There is a world of difference between both. The application was supported by an affidavit of twenty nine paragraphs. No counter-affidavit was tiled by the defendants. However, at the hearing of the application, Mr. Aminu, learned counsel for the defendants, prayed the trial Court to disregard by virtue of section 86 of the Evidence Act, paragraph 11 which he submitted was legal argument and paragraphs 18, 21, 23, 24, 25 and 28 which he urged the court to hold as conclusions.

These paragraphs read:

“11. That the board which purportedly took a decision on the above matter neither raised the above as a charge against me nor did they invite me to appear before them and give an account of what I knew about the allegations, in short, I was denied a fair hearing.

18. That the 2nd respondent has in these proceedings acted maliciously against me as no good cause exists for my termination.
19. That I have worked with the 1st defendant for over 12years without blemish and to terminate my appointment unlawfully at this stage will create hardship for me in securing a future employment in the same cadre.
20. That from the letter exhibit “A” it will be difficult for me to secure any future employment.
21. That if the defendant is allowed to enforce the directives in the letter of termination I shall suffer irreparable damage as my office would have been filled, my house and official vehicle allocated to someone else should the court find in my favour.
22. That it will not inconvenience the respondents to keep me in service pending the outcome of this suit.
23. That I bring this application in good faith.”

In her ruling on the submissions made by both counsel, the learned trial judge, Cudjoe, J., found no merit in the application and accordingly dismissed it. In refusing the application she based her decision on the following:

(a) The general rule that a Court cannot impose a willing employee on an unwilling employer;

(b) The fact that it would take a relatively long time to dispose of the substantive suit; and

(c) There was nothing before her to show that the inconvenience the plaintiff would suffer if the application was refused could not be compensated for by way of damages should the plaintiff succeed in his claim in the substantive suit.

The plaintiff who was obviously dissatisfied with the ruling of the trial judge took the matter to the Court of Appeal. The issues arising from the appeal of the appellant before the Court of Appeal may be summarized thus:

1. Whether the appellant satisfied the conditions necessary for granting an interlocutory injunction even if it amounts to compelling an unwilling employer to retain a willing employee; 2. The question of where the balance of convenience lies in the circumstances of the case; and
2. Whether the learned trial judge adequately considered the appellant’s case.

In resolving these issues the Court of Appeal agreed with the trial judge that there was no material placed before her by the appellant to show that whatever inconvenience that may arise directly from the refusal to grant the injunction cannot be adequately compensated by award of damages should the substantive case terminate in favour of the appellant. The Court of Appeal also held that the trial judge was right in taking into consideration the length of time it would take to finally dispose of the substantive case which was still pending.

The Court of Appeal, per Achike, J.C.A., concurred-in by Mohammed and Akpabio, J.J.C.A., gave another reason why the application was rightly dismissed. According to him should the appellant eventually succeed he would be given a comparable alternative appointment assuming that his position would have been filled – the same with official residence and vehicle allocated to the appellant. Another observation made by Achike, J.C.A., which the trial judge gave no thought to and was not one of her reasons for dismissing the application, and was therefore not an issue in this appeal, was that “barring paragraph 28. I think the bulk of the paragraphs enumerated above (paragraphs 18,21,22,23,24,25,27 & 28) appear to offend section 86 of the Evidence Act which stipulates:

‘an affidavit shall not contain extraneous matters, by way of objection. or prayer, or legal argument or conclusion’.

Shorn of those paragraphs, the remaining paragraphs of the affidavit would, in my humble view, leave the appellant in a hopeless stead of establishing favourable grounds for the grant of the interim injunction.”

Against the judgment of the Court of Appeal, the appellant filed five grounds of appeal. Four issues for determination were identified in the appellant’s brief. They read:

“1. Whether it was a lawful exercise of jurisdiction of the Court of Appeal to refuse or omit to consider the instant appeal on the basis of the findings of the trial court which had been duly appealed against and to introduce new matters and conjectures not taken into account by the trial court in the exercise of its jurisdiction, moreso as there was no cross-appeal or notice of intention to vary the reasons of the decision of the trial court

2. Whether the Court of Appeal properly considered and applied the principles relating to the grant of an order of interlocutory injunction having regards to the peculiar circumstances of this appeal
3. Whether from the facts of this instant appeal, the Court of Appeal was under a duty to exercise its discretion in the appellants favour and grant the prayers refused by the trial court
4. In favour of whom i.e. between the disputing parties does the balance of convenience lie in this case and if the question is resolved in favour of the appellant, can an Order of Interlocutory Injunction be made in his favour”

It is to be noted that in the respondents’ brief issues for determination were not formulated. Neither were the issues proffered by the appellant adopted. Besides, counsel for the respondents inevitably fell into a further grave error by basing his argument on the grounds of appeal without regard to issues formulated in the appellant’s brief. Failure to formulate issues in a brief is sufficient by itself to render the brief incompetent, and arguments canvassed therein would therefore be of no consequence. The brief becomes irredeemably bad if, as in this case, arguments are not based on any issue or issues or semblance of them.

As can be seen issue one projected in the appellant’s brief seriously calls to question the jurisdiction of the Court of Appeal to decide an appeal on issues not raised by way of appeal, cross-appeal or respondent’s notice that a decision of the court below should be affirmed on grounds other than those relied upon by that court.

I have already referred to the fact that in the trial court learned counsel for the defendants, now respondents, prayed the court to disregard a number of paragraphs in the affidavit of the plaintiff because they were incompetent by virtue of section 86 of the Evidence Act. In the ruling of the learned trial judge, although she reproduced the submission of counsel for the defendants on the issue, she made no decision on it. The defendants neither cross-appealed against the failure of the trial judge to pronounce on the question of the infringement of section 86 of the Evidence Act nor filed a respondent’s notice in respect thereof.

This court has had occasions to admonish that it is not within the competence of a Court of Appeal to raise issues not within the purview of the grounds of appeal and are therefore not issues which call for decision by it. There is however Order 1 Rule 20(5) of the Court of Appeal Rules which states:

“The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order. on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.”

It is implicit in the provision “and the court may make any order, on such terms as the court thinks just, to ensure the determination on the merits of the real question in controversy between the parties “that it behoves the court before raising and determining issues not raised by either of the parties to make any order which will ensure “the determination on the merits of the real question in controversy”. In pursuance of this provision and in making its order the court will draw the attention of the parties to the issue it wishes to deal with and perhaps direct that briefs be filed in respect of it or that oral submissions be made.

The seeming wide discretionary powers given to the Court of Appeal by the provision of Order 1 Rule 20(5) are curtailed by Order 3 Rule 2(6) which provides:

“Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant:

Provided that the Court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

In the same vein the court will not dismiss an appeal on any ground not set forth by the respondent in his cross-appeal or in the respondent’s notice unless the appellant has had sufficient opportunity of contesting the case on that ground.

What it all boils down to is that the Court of Appeal will not act arbitrarily. It will be guided by sense of justice. It will be fair to both sides. It will not raise an issue suo motu without calling on the parties to address it on it.

The question now is whether the Court of Appeal acted arbitrarily in its pronouncement in respect of relevant paragraphs of the affidavit in support of the plaintiff’s application. I do not think so. It is instructive to note that in the appellant’s brief of argument in the Court of Appeal, learned counsel for the appellant made the point at page 47 of the record that “the appellant had made out an irrefutable case that the balance of convenience was in his favour. The appellant unquestionably demonstrated that the inconvenience which he will suffer by the refusal of the injunction is greater than that which the respondents would suffer, if granted. As usual the burden of proof was on the appellant which said burden was discharged in the following paragraphs of the appellant’s unchallenged affidavit.” Learned counsel proceeded at page 48 to refer to the contents and imports of paragraphs 21 to 27. It was the submission of counsel that these paragraphs were not denied.

In reply to this submission, learned counsel for the respondents submitted in the respondents’ brief at page 66 that the rule is that a plaintiff seeking an interlocutory injunction must establish a strong prima facie case for the existence of its right, and at least, that he was likely to succeed on that issue and also a prima facie case of the infringement of its right. He continued thus:

”The appellant sought to accomplish these basic requirements through among others, paragraphs 18, 21, 22, 23, 24, 25, 27 and 28 of his affidavit which together, to say the least offend the rules regulating affidavit evidence as provided under section 86 of the Evidence Act which provides as follows:

“An affidavit shall not contain extraneous matters, by way of objection, or prayer, or legal argument or conclusion.”

It is respectfully submitted that section 86 of the said Evidence Act is a mandatory provision and accordingly must be strictly complied with.

It is in line with the provision of the said section 86 of Evidence Act that the last three paragraphs of the appellants brief at page 8 ought to be discountenanced because they are conclusions over allegations made by the appellant before the trial court”

It is true that the trial Court did not pronounce on the competence or otherwise of the relevant paragraphs of the affidavit, and that none of the issues as framed in the appellant’s brief in the court below specifically raised it. It however seems to me plain that the appellant having raised the question of the “unchallenged affidavit” in his brief of argument and had thus provoked the respondents to respond to it, and since it appeared to the Court of Appeal that it was a real issue in controversy and that the parties had sufficient opportunity of contesting the appeal on that ground, and did in fact contest it, the Court of Appeal was eminently competent to pronounce on it as it did.

I am in agreement with learned counsel for the appellant that the Court of Appeal was wrong in holding that should the appellant eventually succeed, he would be given a comparable alternative appointment, assuming that his position has been filled, and that he would also be given an alternative official residence and another vehicle. I do not think it was open to the Court of Appeal in the circumstances of this case to give gratuitously additional reasons why the application was rightly dismissed. All that was open to the Court was to consider whether the reasons given by the trial court could sustain the ruling.

I am satisfied that the trial court resolved the question of balance of convenience rightly and that it was the only solid base the dismissal of the appellant’s application for interlocutory injunction could stand.

The question whether or not the balance of convenience is in favour of the applicant or respondent is sometimes a difficult one to determine. It cannot be ascertained with mathematical exactitude. Unless the decision of the trial judge on the issue is glaringly wrong, an appeal court will not substitute its own contrary view on the matter for that of the trial judge.

I am also however in agreement with learned counsel that the Court of Appeal, and therefore the trial court, brought into play the strange and unacceptable legal principle that an interlocutory injunction may not be granted because it might take a relatively long time to dispose of the substantive case. It cannot be. If that were to be right no interlocutory injunction would ever be granted in our courts.

This appeal fails on the basis of balance of convenience. The learned trial judge, as rightly held by the Court of Appeal, exercised her discretion judicially and, I think, judiciously, regardless of faulty reasoning in one or two aspects of the case. The appeal is dismissed. However, the trial judge’s premature expression of the view that a court cannot impose a willing employee on an unwilling employer disqualifies her from hearing the substantive suit. I therefore agree with the order made by my learned brother, Wali, J.S.C., that the case be heard by another judge. I will also award no cost. Parties are therefore to bear their costs.

U. OMO, J.S.C.: The appellant in this case is complaining against the termination of the appointment which he held in the 1st respondent company from 1976 to 1988, during which period he rose to the permanent and pensionable office of Assistant General Manager (Finance). The details of his claim as endorsed on his writ of summons are fully setout in the lead judgment of my learned brother Wali, J.S.C, which I have been privileged to preview. It is sufficient here to state that he is seeking declarations to the effect that the termination of his appointment is wrongful, void, and of no effect, contrary to the rules and regulations of his employment, and that he be re-instated in his office and be paid all his entitlements from the date of his purported termination to the date of judgment.

Alternatively, he seeks payment of his terminal entitlements and general damages. He finally seeks an order of injunction to restrain the 1st defendant company from enforcing the contents of the letter of termination which includes his vacating the official premises occupied by him and surrendering his official car.

In order to enforce this last claim pending the determination of the main suit, he filed, at the same time. a motion seeking an interim injunction. After hearing counsel, the learned High Court Judge, in a reserved ruling, refused the application mainly on the ground that the balance of convenience is in favour of the 1st defendant company; and that whatever inconvenience the plaintiff/appellant may suffer in the interim can finally be adequately compensated in damages. Dissatisfied with this ruling the plaintiff appealed against same to the Court of Appeal.

In its judgment the Court of Appeal held that the grant or refusal of an injunction is at the discretion of the High Court which has exercised same “judicially and judiciously”. Whilst the plaintiff [called “appellant” hereafter] had a strong prima facie case before the High Court, the affidavit evidence on which it relied to establish a balance of convenience in his favour is largely defective because it offended provisions of section 86 of the Evidence Act. The Court however proceeded to consider the merits of the averment deemed improper, and agreed with the High Court that the balance of convenience predominated against the order sought.

In answer to the complaint that the appellant’s case had not been adequately considered the Court of Appeal held that the affidavit evidence adduced did not justify more detailed and/or further consideration of the application.

In his appeal to the Court of Appeal, the appellant filed five grounds of appeal from which he raised four issues for determination. These are set out in the judgment of my learned brother Wali, J.S.C. and will not be further reproduced here.

My learned brother Wali, J.S.C. has fully considered the first ground of complaint covering issues 2 and 4 i.e. in whose favour the balance of convenience lies and I agree with him entirely. I only need to add that even if all the paragraphs of the affidavit filed in support of his application are in order, they constitute evidence which the court can still find not sufficient and/or convincing to justify the making of the order sought. Important matters not deposed to, which therefore weaken the case of the appellant, have been pointed out by the Court of Appeal.

I also agree with the view the courts below have taken, that whatever damage a failure to grant the interim injunction sought may occasion can easily be compensated in damages vide SARAKI V. KOTOYE (1990) 4 NWLR (Pt.143) 144.

There is no suggestion here that the 1st defendant company [hereinafter called”1st respondent”] cannot pay any such damages. It is immaterial that the appellant has not claimed for damages. Should the need arise, pleadings can always be amended to include same.

The second complaint covered by the first issue for determination is against the comments made in the lead judgment of ACHIKE, J.C.A. in the court below when he stated as follows:-

“It is now well over 9 months that the respondents terminated the applicant’s employment and also 7 months since applicant’s application to the lower court was refused. Undoubtedly much water has flowed under the bridge. It is therefore quite clear that this court, in considering the balance of convenience ought not like the proverbial ostrich bury its head in the sand and pretend that the protracted passage of time since the occurrence of the act complained of has remained static.”

I agree with the view expressed by my learned brother Wali, J.S.C., that the delay referred to was not caused by the appellant and so should not be held against him. The true position however is that, objectionable as the comments may be, they do not seem to have affected the conclusion arrived at on the issue of balance of convenience by the court below, which seems to have arrived at its conclusion without recourse to the sub-issue of “passage of time”. After holding that the admissible affidavit evidence does not support a grant of interim injunction [vide P.92 of the record of proceedings], the offending comments were made at P.93 thereof. At pp.94-95, of the proceedings, without linking same to pages 92 and 93, the learned appellate Judge proceeded to consider other reasons why the balance of convenience is against the appellant. No miscarriage of justice can therefore be said to have arisen from the comments objected to.

The third complaint which is also covered by the first issue for determination is that the court below was wrong to have relied on the objections to some paragraphs of the affidavit of the appellant which it proceeded to uphold, when in fact the High Court Judge in her ruling did not uphold those objections, and there was no appeal against her failure to do so. The paragraphs, objections to which were upheld, are 21, 22, 23, 24 and 27 of the affidavit in support of the motion for interim injunction.

They state thus:-

“(21) That I have worked with the 1st defendant for over 12years without blemish and to terminate my appointment unlawfully at this stage will create hardship for me in securing a future employment in the same cadre.

(22) That the letter Exhibit “A” concluded that I was grossly negligent which is a slur on my records.

(23) That from the letter EXHIBIT “A” it will be difficult for me to secure any future employment.

(24) That if the defendant is allowed to enforce the directives in the letter of termination I shall suffer irreparable damage as my office would have been filled, my house and official vehicle allocated to some one else should the court find in my favour.

(27) That my children all go to school in Zaria and the period will occasion substantial difficulty for them”.

5.86 of the Evidence Act which they are said to offend provides that

“An affidavit shall not contain extraneous matters, by way of objection, or prayer or legal argument or conclusion (Italics mine)

The Court below (Per Achike, J.C.A.) concluded that:-

“I think the bulk of the paragraphs mentioned above appear to offend section 86 of the Evidence Act”.

Counsel for the appellant in his .brief has submitted that

“the paragraphs do not in any way offend against section 86 of the EVIDENCE ACT. They can at best be treated as facts within the appellant’s knowledge”.

With the possible exception of paragraph 22, I think, with due deference to the views expressed in the lead judgment, that his submission is well taken, and that the learned trial judge was wrong in holding that the other paragraphs offended against the provisions of Section 86 of the Evidence Act. It is my view that a mere conclusion, which is a statement of fact, within the knowledge of a deponent, does not offend against section 86 of the Evidence Act. It is offensive if it is a legal argument or a legal conclusion. It is also the contention of appellant’s counsel that the learned High court Judge in her ruling did not accept the objection and used the contents of the affidavit in coming to a conclusion in her ruling.

It is not true, as appellant’s counsel is suggesting, that the learned trial judge accepted the paragraphs objected to. As a matter of fact, she made no findings on the objection and proceeded to come to her conclusion on the balance of convenience without reference to them. The Court of Appeal was quite right to consider the objection raised to those paragraphs of the affidavit because (a) they were specifically set out and again relied upon in his brief by appellant’s counsel, whilst (b) the respondents also repeated their objection to those paragraphs in their brief. Issues were therefore joined and the Court below was right to have considered them. If the court below relied only on these rejected paragraphs to come to its conclusion on the balance of convenience the appellant’s appeal would have succeeded on this ground. But it did not. It proceeded in its judgment, at pages 94 and 95 of the record of proceedings, to give reasons why no irreparable damage would be done to the appellant by a refusal of the application which cannot be compensated in damages. In the process of so doing he even considered facts stated in the paragraphs of the affidavit which he had earlier rejected. I therefore hold that no miscarriage of justice had also been occasioned by this wrong finding.

The fourth complaint is that the court below did consider the statement of the High Court that the general rule is that “you cannot impose a willing employee on an unwilling employer” no matter the circumstances of the case. Even though appellant’s counsel introduced this issue in his submissions, it is non-the-less an unfortunate statement for the learned High Court Judge to make because it gives the impression that a question which she had to determine, to wit, whether the nature of the employment in issue in this case is that of an ordinary master and servant or whether the appellant is an employee whose employment is protected by statute (Vide Olaniyan & Ors v. Unilag (1985) 2 NWLR (Pt.9) 559) has already been decided by her. Here again this statement cannot be seriously suggested to have guided her decision. It certainly did not affect the decision of the court below, which very wisely refused to consider that issue, conscious as it was that:-

“In dealing with the application for interim injunction, such as the instant one, great care must be taken not to step into the arena of the substantive case pending between the parties, in order to avoid making pronouncements that may be prejudicial to the said case”

For the reasons which I have set out herein-before, and the fuller treatment on the issue of balance of convenience in the lead judgment of my learned brother, Wali, J.S.C., which I adopt as mine, I also dismiss the appeal as lacking in merit. I also subscribe to the view, and so order, that because of the unfortunate remark made by the learned High Court Judge, the substantive case should be heard by another Judge of the Kaduna High Court.

I also agree that each party should bear its own costs of this appeal.

Appeal dismissed.

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SC.240/1989