➥ CASE SUMMARY OF:
Globe Fishing Industries Ltd & Ors V. Chief Folarin Coker (SC.98/1987, 23 Nov 1990)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Interlocutory/interim injunction;
➥ CASE FACT/HISTORY
The respondent who was the plaintiff in the court of first instance filed an action against the defendants now the appellants in this court and claimed as follows: 1. Declaration that the election of Mr. Joseph Adeola as a director of Globe Fishing Industries Limited is null and void. 2. That the chairman Alhaji Sule Katagum, the managing director Mr. Roussinov and the general manager Mr. Dayaldasam be compelled to make available to the plaintiff certified bank statements of account of the Globe Fishing Industries Limited at the United Bank for Africa for the periods 1st July, 1979-30th June, 1980 respectively; 3. That the chairman Alhaji Sule Katagum, managing director Mr. Roussinov, and the general manager Mr. Dayaldasam be compelled to convene the annual general meeting of Globe Fishing Industries Limited for the year 1980 to consider (a) the annual accounts covering the periods 1/7/79- 30/6/80 and 30/6/80 – 31/12/80. (b) to declare dividends for the year ending 30th June, 1980.”
On 9th April, 1981 that the respondent herein filed an application seeking the following prayers. “1. Joinder of the following person as defendant in the above suit:- Mr. Joseph Adeola 2. Amendment of the statement of claim in the suit. 3. Interim injunction restraining the 2nd defendant from exercising the functions of a director and chairman of Globe Fishing Industries Co. Ltd. until the determination of this suit. 4. Interim injunction restraining Mr. Joseph Adeola from performing and exercising the functions of a director of Globe Fishing Industries Co. Ltd. until the determination of this suit. 5. Interim injunction restraining the board of the company from taking any action which will affect the status quo in this suit and for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”
There was an affidavit in support. As a result of the conflicts in the affidavits filed by both sides, the learned trial Chief Judge rightly took evidence, no doubt, to resolve some of the areas of conflict Falobi v. Folabi (1976) 1 N.M.L.R. 169; Uku v. Okumagba (1974) 3 S.C. 35; National Bank of Nigeria Ltd. v. Are Brothers (1977) 6 S.C. 97. The learned Chief Judge on 7th June, 1984 granted only one of the remaining prayers. The first two prayers had earlier been granted by consent. Prayer (d) was granted as follows:- “I would in the result grant the plaintiff/applicant his prayer that is that Mr. Joseph Adeola be restrained from performing and exercising the functions of a director of 1st defendant/company until the determination of this case.”
The defendants/respondents in the court of first instance were dissatisfied with that ruling and appealed to the Court of Appeal on a number of grounds. On 14th April, 1987 the Court of Appeal in a unanimous decision (Coram, Mohammed, Kutigi and Kolawole, JJ.C.A.) dismissed the appeal hence a further appeal to this court.
➥ ISSUE(S)
I. Whether the learned trial Chief Judge was right in granting an interlocutory injunction to the plaintiff in respect of the reliefs sought in his claim before the court?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[INTERLOCUTORY INJUNCTION SHOULD BE GRANTED
‘If the articles of association limits the appointment of number of director to ten and the respondent is contending that he is still a director notwithstanding the appointment of the 5th defendant/appellant, then there is in my view a real issue to be tried and this is a proper case in which an interlocutory injunction should be granted. Obeya Memorial Specialist Hospital v. Attorney-General of the Federation (1987) 3 N.W.L.R. (Pt.60) 325. I will agree with the opinion of the learned author expressed on page 588 of Pennington’s Company Law, 4th Edition where the author said: “The dividing line between personal and corporate rights is very hard to draw, and perhaps the most that can be said is that the court will incline to treat a provision in the memorandum or articles as conferring a personal right on a member only if he has interest in its observance distinct from the general interest which every member has in the company adhering to the terms of its constitution.” It is for these reasons that I summarily dismissed the appeal on 10th September, 1990 with costs assessed at N500.00 in favour of the respondent.’
‘This is what this court was saying in Ladunni v. Kukoyi (supra) when it declared; “The principle seems to be clear and in short an interim injunction would be granted to a party who shows that he has a prima facie case on a claim of right or in other words that prima facie, the case he has made out is one which the opposing party would be called upon to answer and that it is just and convenient to the court to intervene and that unless the court so intervene at that stage, the other party’s action or conduct would irreparably alter the status quo or render ineffective any subsequent decree of the court,” Quite concisely expressed the principle is that the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is the probability that the plaintiff is entitled to the relief sought see Egbe v. Onogun (1972) 1 All N.L.R.95; Kufeji v. Kogbe (1961) 1 All N.L.R.113.’]
.
.
.
✓ DECISION:
‘I will point out that when this appeal was heard and dismissed on 10th September, 1990, my learned brother, Nnamani, J.S.C., now of blessed memory presided. We unanimously agreed that the appeal be dismissed. His death has deprived us his reasons which, as usual, would have been clear, lucid and articulate.’
➥ FURTHER DICTA:
⦿ WHILE DETERMINING INTERLOCUTORY APPLICATION, CARE SHOULD BE TAKEN NOT TO DELVE INTO THE SUBSTANCE
In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to prejudge the matter in respect of which evidence is still to be led. It is for this reason that I will prefer the issues raised by the respondent in the respondent’s brief. I will however touch on the relevant issues raised by the appellants. — Olatawura JSC.
⦿ INTERIM INJUNCTION CAN BE DISCHARGED DURING THE SUBSISTENCE OF THE CASE
I am compelled to make this observation because of the error often committed by both counsel and the court in applications of this nature. The application here is seeking an injunction pending the determination of the substantive suit, such an injunction can only be interlocutory and not interim. An interim injunction is one that can be discharged during the pendency of the substantive action. See Kotoye v. C.B.N. (1989) 1 N.W.L.R. (Pt.98) 419 at 4656. It seems obvious from the wording of the application, and the supporting affidavit that applicant was seeking an interlocutory injunction, the court so understood and so made the order sought. This had to be so because applicant was seeking an injunction pending the determination of the substantive suit see Beese v. Woodhouse (1970) 1 W.L.R. 586. It seems to me that only the 4th of the issues on a careful analysis of the issues for determination formulated by learned counsel to the appellant falls within the scope of the facts of the case and the judgment of the Court of Appeal appealed against. — Karibe-Whyte JSC.
⦿ INTERIM AND INTERLOCUTORY INJUNCTION ARE MEANT TO KEEP MATTERS IN STATUS QUO; SUBSTANCE OF THE CASE SHOULD NOT BE DELVED INTO
Interim and interlocutory injunctions are useful equitable remedies which the courts resort to on the application of a party to a litigation in keeping matters in status quo between litigating parties. It is a remedy granted pending the determination of the substantive action. Hence the court granting an interim or interlocutory injunction does not and should not go to into the merits of the substantive action. The applicant seeking the grant of the injunction is only required to satisfy the court that it necessary in the interest of justice and the balance of convenience to maintain the status quo between parties. — Karibe-Whyte JSC.
⦿ IN DETERMINING INTERLOCUTORY OR INTERIM INJUNCTION, THE JUDGE IS NOT CONCERNED WITH THE ESTABLISHMENT OF RIGHTS VIOLATION
Learned counsel to the respondent has submitted in his brief of argument, and I agree with him that the law is settled that in determining applications for interim or interlocutory injunctions pending the determination of the substantive action, the Judge is not concerned with the establishment of the violation of the rights in dispute. The consideration of the court at this stage is for a determination whether on the facts the applicant has disclosed any rights in respect of the subject matter of the substantive action, and that the evidence disclosed was sufficient to keep the parties in the position in which they were before the violation of the rights complained of. This court has stated the applicable principles clearly in its recent judgment in Obeya Memorial Hospital v. Attorney-General for the Federation (1987) 3 N.W.L.R. at p.338 where Obaseki, J.S.C., restated principles in as follows- “When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis, the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action.” — Karibe-Whyte JSC.
⦿ PERPETUAL INJUNCTION VERSUS INTERLOCUTORY INJUNCTION
All I wish to emphasize is that an application for an interlocutory injunction is not the same thing with that for a perpetual injunction. For, whereas a perpetual injunction can only be granted after a trial and the applicant has established his right and an actual or threatened infringement of it, an interlocutory injunction is granted pending the trial of the action in order to keep matters in status quo until the issues in controversy between the parties can be tried and determined. As it is so, an applicant can properly obtain an order of interlocutory injunction even though he has not made out a case that will necessarily entitle him to one of perpetual injunction, See on this: Webber George Egbe v. Peter Onogun (1972) 1 All N.L.R. (Pt.1) 95 at .p.99; Chief Emeka Odumegwu Ojukwu and Anor. v. Military Governor of Lagos State and Ors. (1986) 3 N.W.L.R. (Pt.26) 39, p.45. — Nnaemeka-Agu JSC.
⦿ CONFLICTING AFFIDAVIT RATHER SUPPORT THAT THERE ARE SUBSTANTIAL ISSUES TO BE TRIED
Indeed, quite often the fact that affidavits conflict in such a case rather support instead of derogating from the fact that there are substantial issues to be tried. — Nnaemeka-Agu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olatawura, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
