DARLINGTON v. POLARIS BANK LTD & ORS
(2022)LCN/16374(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 11, 2022
CA/L/627/2008
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Between
MR. JOHN EROMOSELE DARLINGTON APPELANT(S)
And
1. POLARIS BANK LIMITED 2. CHIEF FEMI SOMO 3. ABIMBOLA IZU 4. ALH. IBRAHIM IDA 5. PRINCE E.O.C. ELUDOYIN 6. MR. COLLINS CHIKELUBA 7. MR. OLATUNDE AYENI 8. MR. ADEKUNLE OSIBODU RESPONDENT(S)
RATIO:
THE SUBJECT MATTER OF THE LITIGATION SHOULD NOT BE DESTROYED BEFORE THE JUDGMENT OF THE COURT
This appeal borders on the rule governing the grantor refusal of an interlocutory injunction, whose purport is the preservation of the res in the litigation. The law requires that the res or subject matter of the litigation should not be destroyed or annihilated before the judgment of the Court. It is beyond doubt that the object of interlocutory injunction is to protect the Applicant against injury by violation of his right for which he cannot be adequately compensated in damages if the dispute is finally resolved in his favour at the trial. See Obeya Memorial Hospital vs. AG Federation (supra); Ogbonnaya vs. Adapalm Nig. Ltd (1993) LPELR-2288 (SC); Dyktrade Ltd vs. Omnia (Nig.) Ltd (2000) LPELR-977 (SC); Akinpelu vs. Adegbore & Ors (2008) LPELR-354 (SC). MUHAMMAD IBRAHIM SIRAJO, J.C.A.
INTERLOCUTORY INJUNCTION CANNOT BE GRANTED WHERE THERE IS NOTHING TO RESTRAIN
It is well settled that an interlocutory injunction cannot be granted where there is nothing to restrain. It is not a remedy for an act that has already been carried out. If the act has been completed, nothing remains to be safeguarded or to be restrained by the grant of an interlocutory injunction; Commissioner for Works Benue State & Anor v Devcon Development Consultants Ltd & Anor (1988) LPELR-884(SC); Angadi v PDP (2018) LPELR-44375(SC). ONYEKACHI AJA OTISI, J.C.A.:
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Lagos, delivered on 06/12/2006, wherein Justice I.N. Auta refused to grant the Appellant’s motion for interlocutory injunction. The background facts leading to this appeal are that the Appellant, who was the Managing Director and Chief Executive Officer of the defunct Bond Bank Plc, was dismissed on 05/11/2005 on allegations of financial improprieties involving misappropriation of funds, gross misconduct and particularly, receiving, concealing and converting the sum of One Billion, One Hundred and Sixty-nine million Naira (N1,169,000,000.00) deposited by one Gbenga Ajala, which funds were allegedly pertained to the funds embezzled by Mr. Tafa Balogun, an erstwhile Inspector General of the Nigeria Police Force. He was dismissed barely three years into his ten-year contractual agreement with the defunct Bond Bank. The Appellant, as Claimant, challenged his dismissal by taking out a Writ of Summons against the Bank and the Chairman and Directors of the Bank before the Federal High Court, Lagos. He also filed an application for interlocutory injunction restraining the Defendants, now Respondents, from evicting him from his official residence or withdrawing the official benefits he enjoys as the Managing Director and Chief Executive Officer of the defunct Bond Bank. It was the refusal of the lower Court to accede to the Appellant’s request that culminated into this appeal. It needs to be mentioned here that following the merger of Bond Bank Plc with other Banks, the name of the 1st Defendant/Respondent was, on the application of the Appellant, changed to Skye Bank Plc by an order of this Court made on 03/03/2014, and further changed to Polaris Bank Ltd by yet another order made during the hearing of this appeal on 22/11/2021. The original Notice of Appeal was filed on 19/02/2007 but the extant Notice of Appeal, predicated on four grounds, was filed on 22/01/2019 and deemed to have been properly filed and served on 22/11/2021.
In the Appellant’s Brief of Argument filed on 21/01/2019 but deemed on, 22/11/2021, three issues were distilled for the determination of this Court as follows:
i. Whether the Appellant satisfied the requirement for the grant of an order of interlocutory injunction as the relationship between the 1st Respondent and Appellant is not that of an employer/employee or master/servant simpliciter which does not entitle the Appellant to an order for interlocutory injunction
ii. Whether the letter of dismissal served on the Appellant complied with the contract of service, Memorandum and Articles of Association of the 1st Respondent, thereby foreclosing the Appellant’s legal right to be protected.
iii. Whether the injunctive relief sought against the Respondents in the Appellant’s application for interlocutory injunction is a completed act by virtue of the letter of termination of his employment.
The Respondents on the other hand submitted a sole issue for determination in their Brief of Argument, couched thus:
“Having regard to the facts and circumstances of this case vis-a-vis settled position of the law on when an injunction may be granted or refused, whether the lower Court was not right to have refused the Appellant’s motion on notice dated 8/11/2005. Grounds 1, 2, 3 and 4.”
At the hearing of the appeal on 22/11/2021, Oladipo Osinowo Esq.,adopted the Appellant’s Brief of Argument settled by him and urged the Court to allow the appeal and set aside the ruling of the lower Court. Faith Adarighofua Esq., adopted the Respondents’ Brief of Argument signed by her under the leadership of Olabode Olanipekun, SAN.
Arguments
Learned counsel for the Appellant submitted with respect to issue 1 formulated by him, placing reliance on Akibu vs. Oduntan (1991) 2 NWLR (Pt.171) 1 at 10, that the essence of interlocutory injunction is to keep matters in status quo until the issue between the parties is resolved. He submitted that the Appellant has a legal right to protect and which right has been threatened by exhibits JD010 and JD011, the two letters removing him from the Board of Directors and dismissing him from the service of the 1st Respondent respectively. Learned counsel argued with the aid of Obeya Memorial Hospital vs. AG Federation (1987) 3 NWLR (Pt.60) 325 at 327-328; Ezebuilo vs. Chinwuba (1997) 7 NWLR (Pt.176) 711 at 719, that the Appellant has satisfied the requirement of having a legal right and that the balance of convenience is in his favour. It was argued that the Appellant will suffer serious harm if removed from his place of abode and that damages will not be adequate compensation in place of interlocutory injunction. The Court was referred to paragraph 13 of the affidavit in support of the motion for interlocutory injunction where the Appellant expressed his willingness to give undertaking as to damages. It was the further contention of the Appellant, relying on Yalaju-Amaye vs. AREC Ltd (1990) 4 NWLR (Pt.145) 422 at 463, that his relationship with the 1st Respondent is not that of master and servant but that of a trustee and fiduciary of the 1st Respondent, which entitles him to the relief claimed in the application before the lower Court.
On issue 2, Mr. Osinowo submitted with reference to Clause 16 of the contract of service between the Appellant and the 1st Respondent that the relief sought in the application for interlocutory injunction involves question of law on which the existence of a legal right depend as there is a dispute regarding the letter of dismissal purporting to foreclose the Appellant’s legal right to be protected. Learned counsel proceeded in paragraphs 4.38 to 4.46 of the Appellant’s Brief of Argument to proffer argument on the substantive issue of whether the letter of dismissal complied with the terms of the contract of service and the Memorandum and Articles of Association of the 1st Respondent. He concluded his argument on issue 2 in paragraph 4.46 of the Appellant’s Brief of Argument, thus:
“We therefore urge the Court to hold that the letter of dismissal did not comply with the contract of service, Memorandum and Articles of Association of the 1st Respondent, therefore the letter of dismissal does not foreclose the Appellant’s legal right to be protected.”
On this submission, I ask the question: Can this Court make such a determination at this stage when that substantive question pending before the lower Court is not the subject of this appeal? I shall return to this query later in this judgment.
The Appellant argued under issue 3 that he did not seek injunctive relief against his dismissal, rather, he sought for injunctive relief against the Respondents from evicting him from his official residence at 17A, Teslim Elias Close, Victoria Island, Lagos, and from withdrawing the benefits of his officeunder the contract of service pending the determination of the substantive suit. He submitted that even though injunction is not a remedy for a completed act, the letter of termination of appointment did not immediately constitute eviction as the Appellant was given three months within which to vacate the official residence. This Court was urged to hold that the lower Court was wrong in holding that the act complained of has been completed, as the terminal date given to the Appellant to vacate the official residence was then not due, and to proceed to hold that the Appellant is entitled to the injunctive relief. We were urged to allow the appeal, set aside the ruling of the lower Court and grant the Appellant’s relief.
Proffering submissions on the sole issue submitted for determination in the Respondents’ Brief, learned counsel for the Respondents stated that from the Record, it is clear that the Appellant occupied the official residential quarters at No. 17A, Teslim Elias Close, Victoria Island, Lagos, under the auspice of his then position as the Managing Director of the 1st Respondent. That the letter of dismissal directed the Appellant torelinquish all of the 1st Respondent’s Assets and properties that were in his possession by virtue of the position he occupied. Learned counsel submitted that from the facts on the Record, the status quo of the parties at the commencement of the action at the lower Court was the dismissal of the Appellant from the 1st Respondent, from which he derived his cause of action against the Respondents. It was contended for the Respondents that the question correctly resolved by the lower Court, and which is now before this Court for consideration is whether the Appellant’s dismissal as Managing Director conferred on him any legal right to obtain orders of injunction that will enable him to continue to stay in the official quarters of the 1st Respondent, and continue to enjoy the benefit of the office of Managing Director, pending the determination of the substantive suit. Relying on the case of Akpughunum vs. Akpughunum (2007) ALL FWLR (Pt.376) 746 at 756, learned counsel for the Respondents submitted that the purpose of granting an order of interlocutory injunction is to preserve the res, it is not to remedy a wrong or undo a perceived wrong. He argued that when the act of which an injunction is sought to restrain has been completed, an injunction cannot be granted to restrain it, because the equitable remedy of injunction is usually granted to protect an established right. Reference was made to the authorities of William Angadi vs. Peoples Democratic Party & Ors (2018) 15 NWLR (Pt.1641) 1 at 23-24; I.I. Erigbuem & Co. Ltd vs. UBA Plc (2018) LPELR-CA/B/184/2013, PP 35-36. It was further restated, relying on Obeya Memorial Hospital vs. AG Federation (supra) that a Court will not grant an order of injunction where an award of damages will be sufficient to compensate for any wrong done to the Applicant. Learned counsel for the Respondent submitted that the lower Court was right when it refused the Appellant’s application on the ground that the act sought to be restrained has been completed by the letter of dismissal served on the Appellant. Relying on Ogbonna vs. President, F.R.N.(1997) 5 NWLR (Pt.504) 281 at 287; A.G. Federation vs. ANPP (2003) 18 NWLR (Pt.851) 182 at 215;Mamman vs. Salaudeen (2005) 18 NWLR (Pt.958) 478 at 500, counsel further submitted that considering the fact that this appeal was filed in 2008, the reliefs sought has become otiose and academic, serving no purpose on the Appellant, and should therefore be refused and the appeal dismissed. On the propriety of the letter of dismissal which the Appellant want the Court to resolve in determining whether or not the Appellant has a legal right which ought to be protected, the Respondents urged the Court not to delve into the merits of the substantive case at an interlocutory stage. Counsel cited in support of this submission, the case of Okpokiri vs. Okpokiri (2000) 3 NWLR (Pt.649)461 at 472, and urged the Court to discountenance the Appellant’s submission under issue 2 of his Brief. On the whole, the Court was urged to dismiss the appeal.
In his Reply Brief, the Appellant submitted that the principle of law on refusal to grant injunction over completed act is not applicable in the case of the instant appeal as the Appellant was not asking the Court to restrain his dismissal. Other submissions made in the Reply Brief amounts to rearguing the appeal and therefore it is needless to recap them here.
Resolution of issues
This appeal borders on the rule governing the grantor refusal of an interlocutory injunction, whose purport is the preservation of the res in the litigation. The law requires that the res or subject matter of the litigation should not be destroyed or annihilated before the judgment of the Court. It is beyond doubt that the object of interlocutory injunction is to protect the Applicant against injury by violation of his right for which he cannot be adequately compensated in damages if the dispute is finally resolved in his favour at the trial. See Obeya Memorial Hospital vs. AG Federation (supra); Ogbonnaya vs. Adapalm Nig. Ltd (1993) LPELR-2288 (SC); Dyktrade Ltd vs. Omnia (Nig.) Ltd (2000) LPELR-977 (SC); Akinpelu vs. Adegbore & Ors (2008) LPELR-354 (SC).
Before going into issue 1 of the Appellant, which I intend to treat together with issue three and the sole issue of the Respondent, I will start the resolution with issue 2 formulated by the Appellant, which, for purposes of emphasis, I reproduce again below:
“Whether the letter of dismissal served on the Appellant complied with the contract of service, Memorandum and Articles of Association of the 1st Respondent, thereby foreclosing the Appellant’s legal right to be protected.”
This Court is required to determine under this issue, whether the Respondents’ letter dismissing the Appellant or terminating his contract of service with the 1st Respondent was in conformity with the provisions of the contract itself and the Memorandum and Articles of Association of the 1st Respondent. In the Appellant’s substantive suit before the lower Court wherefrom this interlocutory appeal emanated, the Appellant sought among other reliefs, the setting aside of the letter of dismissal served on him on the ground that same did not comply with the contract of service and the Memorandum and Articles of Association of the 1st Respondent. It is this same substantive relief sought at the lower Court that the Appellant urged this Court to now determine in an appeal against an interlocutory ruling of the lower Court when the substantive question has neither been resolved by the lower Court nor is it the subject matter of the present appeal before this Court. I have warned myself not only on the impropriety of acceding to the Appellant’s request but the dangers inherent in embarking onsuch action with its attendant undesirable consequences. Indeed, issue 2 as couched by the Appellant has gone beyond the scope of this appeal and I hereby decline its determination, as doing so will tantamount to determining a substantive question at an interlocutory stage. This Court will resist the invitation to make a determination, at the point of hearing an appeal against an interlocutory ruling, which will have the effect of pre-judging or pre-empting the issues for adjudication in the substantive suit before the lower Court. The law is that in an application for the grant of injunction pending the determination of the substantive claim (including the hearing of an appeal arising from a ruling on such application), the Judex has a duty to ensure that pending issues in the substantive suit are not determined at that interlocutory stage. See Group Danone & Anor vs. Voltic Nigeria Ltd (2008) LPELR-1341 (SC); Iweka vs. S.C.O.A. (Nigeria) Ltd (2000) LPELR-1563 (SC); ACB Ltd vs. Awogboro & Anor (1996) LPELR-200 (SC);Duwin Pharmaceutical & Chemical Co. Ltd vs. Beneks Pharmaceutical & Cosmetics Ltd & Ors (2008) LPELR-974 (SC); Agwu & Ors vs. Julius Berger Nigeria Plc(2019) LPELR-47625 (SC). The determination of the legality or propriety of the letter dismissing the Appellant/terminating his contract of service with the 1st Respondent can only be done at the trial of the substantive matter or at the hearing of the appeal in the substantive matter and not at the hearing of an appeal against an interlocutory ruling. Issue 2 formulated by the Appellant, to the extent that it relates to the determination of a question in the substantive suit which is yet to be agitated by the parties, is therefore beyond the scope of this appeal.
I shall now return to the consideration of the issue(s) that is/are relevant to this appeal. The Appellant’s 10-year contract of service with the 1st Respondent as its Managing Director which commenced in August, 2002, was brought to an end by a letter dated 05/11/2005 on allegation of financial impropriety and gross misconduct. The Appellant promptly challenged his dismissal by taking out a writ of summons in the Federal High Court, Lagos on 08/11/2005. That same date, he filed an application for interlocutory injunction to restrain the Respondents fromevicting him from his official residence and also from withdrawing the benefits he was enjoying as the Managing Director of the 1st Respondent. This appeal is a consequence of the lower Court’s refusal to grant the order of interlocutory injunction. The case of the Appellant on appeal is that notwithstanding his dismissal, the Appellant has shown that he has a legal right which has been threatened. The Respondents, on the other hand, argued that with his dismissal, the Appellant has no legal right to protect through the remedy of injunction as the act complained of has been completed. That the only legal right available to the Appellant is the right to challenge his dismissal. The law is firmly settled that the essence of granting an interlocutory injunction is to preserve the res from dissipation pending the resolution of the dispute presented before the Court. Where, however, the act sought to be restrained has already been carried out, an injunction cannot lie as it is not a remedy for a completed act, even where the act is irregular. The only remedy available in respect of a completed act or conduct is perpetual injunction. See William Angadi vs. Peoples Democratic Party & Ors (supra); Ideozu vs Ochoma (2006) LPELR-1419 (SC); AR Security Solution Ltd vs. EFCC (2018) LPELR-43828 (SC); Buhari vs. Obasanjo (2003) LPELR-813 (SC). The subject matter of the Appellant’s action at the lower Court which gives him the cause of action to sue the Respondents is the determination of his appointment with the 1st Respondent as its Managing Director. The termination of the appointment was a completed act, leaving nothing that can be safeguarded by way of an order of interlocutory injunction. Learned counsel for the Appellant argued in the Appellant’s Reply Brief that the principle of law on refusal to grant injunction over completed act is not applicable here as the Appellant was not requesting the Court to restrain his dismissal. The benefits of the office of Managing Director of the 1st Respondent in respect of which the Appellant is seeking injunctive relief are intricately tied to the office that they cannot be separated from it. After all, it is by virtue of his appointment as the Managing Director of the 1st Respondent that the Appellant became entitled to those perquisites of office which he seeks to protect by an order of injunction. Now, with the determination of his contract of service, rightly or wrongly, those benefits stand automatically determined and/or terminated as well, because they are part and parcel of the Appellant’s contract of service. The benefits enjoyed by the Appellant as Managing Director of the 1st Respondent are inseparable from the contract of service and therefore the determination of one amount to the determination of the other. The dismissal of the Appellant erases all benefits that accrued to him vide the terminated contract of service. His right or privilege to those benefits were uprooted by the termination of his appointment. Being a completed act, there is nothing left to be protected by an order of interlocutory injunction. In the result, I hold that the finding of the lower Court in this regard is faultless. I did not find any merit in this appeal and I dismiss it accordingly. I affirm the ruling of the Federal High Court, Lagos in Suit No. FHC/L/CS/1152/05 delivered on 06/12/2006. The Respondents are entitled to cost of this appeal which I assessed at N200,000.00
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in draft form, a copy of the judgment now delivered by my learned brother, Muhammad Ibrahim Sirajo, JCA, in which this appeal was dismissed. The issues arising for determination have been comprehensively considered and resolved. I am in agreement with the reasoning and conclusions therein, which I adopt as mine.
It is well settled that an interlocutory injunction cannot be granted where there is nothing to restrain. It is not a remedy for an act that has already been carried out. If the act has been completed, nothing remains to be safeguarded or to be restrained by the grant of an interlocutory injunction; Commissioner for Works Benue State & Anor v Devcon Development Consultants Ltd & Anor (1988) LPELR-884(SC); Angadi v PDP (2018) LPELR-44375(SC).
For this reason, and for the fuller reasons as articulated by my learned brother, I also dismiss this appeal, and abide by the orders made therein.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the opportunity of reading the leading judgment delivered by my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA. I agree with his analysis and the conclusions reached in the resolutions of the various issues raised in this appeal. I have nothing more to add. I, too, dismissed the appeal.
I abide by the order for cost.
Appearances:
Oladipo Osinowo. For Appellant(s)
Faith Adarighofua For Respondent(s)
