In The Court of Appeal

(Port Harcourt Judicial Division)

On Thursday, the 15th day of March, 2012

Suit No: CA/PH/106/2010

 

Before Their Lordships

 

  

MUSA DATTIJO MUHAMMAD

....... Justice, Court of Appeal

PAUL ADAMU GALINJE

....... Justice, Court of Appeal

TUNDE OYEBANJI AWOTOYE

....... Justice, Court of Appeal

 

 

 

 Between

TOTALE & P NIGERIA LIMITED

Appellants

 

 

 

 And

    

MR. TARI IMOLADEI & ORS

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

APPEAL - APPEAL AGAINST A GRANT OF INJUNCTION: Whether an appeal against a grant of injunction by the Lower Court lies to the Court of Appeal as of right

 

 

"In the authority of Elobisi v. Onyeonwu [1989] 5 NWLR [Pt.120] 224 at 231-232 paragraph F-A, which was cited by the Respondents, this court said:- "I must say as was made clear by the court on hearing this application that prayers [I] and [II] above are unnecessary. The proposed appeal is against an interim-injunction. By virtue of section 220[1][g][11] of the 1979 Constitution no leave is required to appeal against it" The court funher held that the provision of S.15[1] of the Court of Appeal Act 1976 was inconsistent with S. 220[1][g][11] of the Constitution and was therefore void to the extent of the inconsistency. Section 220[1][g][11] of the 1979 Constitution and section 15 of the Court of Appeal Act cited above are the same as 241[1][f][11] of the 1999 Constitution and section 14 of the Court of Appeal Act 2004 respectively." Per GALINJE, J.C.A. (Pp. 15-16, paras. F-C) - read in context

 

 

 

 

2

APPEAL - ISSUES FOR DETERMINATION: Whether a respondent who has not cross-appealed, can formulate issues independent of the grounds of appeal filed by the appellant

 

 

"The Respondents' first issue for determination of this appeal does not seem to arise from any of the grounds of appeal. A respondent who has not cross-appealed, cannot formulate issues independent of the grounds of appeal filed by the appellant. See Mashuwareng v. Abdu [2003] 11 NWLR [Pt 831] 403, Owhonda v. Ekpechi [2003] 17 NWLR [Pt 849] 326." Per GALINJE, J.C.A. (Pp. 12-13, paras. G-A) - read in context

 

 

 

 

3

COURT - JURISDICTION OF COURT: When a jurisdictional issue can be raised

 

 

"However on a careful reading of the Respondents' first issue, it appears to me that, learned counsel seems to put forward argument which he should have proffered in support of the preliminary objection. This issue is challenging the jurisdiction of this court to hear the appeal. A jurisdictional issue can be raised, at any stage of proceeding either in writing or orally. Since this is an objection to the court's jurisdiction, even though improperly raised, I will nonetheless consider the argument in support." Per GALINJE, J.C.A. (P. 13, paras. A-D) - read in context

 

 

 

 

4

APPEAL - PRELIMINARY OBJECTION ON APPEAL: Whether where there is a notice of preliminary objection to the competence of an appeal, the Court seized with the hearing of the appeal shall first consider and determine the preliminary objection

 

 

"Now, the position of the law is that, where a notice of preliminary objection to the competence of an appeal is issued, the court seized with the hearing of the appeal shall first consider and determine the preliminary objection. This is because if the objection is upheld, that will be the end of the appeal. See Odu v. Agbor-Henseon (2003) 1 NWLR [Pt.802] 624 at 637 paragraph B-C; Osun State Govt. v. Delami [Nig] Ltd. [2003] 7 NWLR [Pt.818] 72; Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537." Per GALINJE, J.C.A. (P. 11, paras. C-E) - read in context

 

 

 

 

5

EQUITABLE REMEDY - RESTORATIVE MANDATORY INJUNCTION: Basis on which a restorative mandatory injunction is made against a party

 

 

"An order of Mandatory injunction can only be granted on the clearest evidence as well as very high standard of proof so that at the trial it will still appear that the order was correctly made. Where a restorative mandatory injunction is made against a party who cannot consummate same, such order is made at large and it is useless. See NDIC v. SBN PLC [2003] 1 NWLR (PT.801) 311, ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT.224) 396. It is only in exceptional cases that a court will grant a mandatory injunction, such as where the defendant surreptitiously does a thing in order to steal a march against his opponent during the pendency of a suit claiming an injunction. See NDIC V. SBN Plc [supra], Daniel v. Gerguson (1891) 2 Ch. 27. In the instant case, the power of dismissal of the Respondents and employing or restoring them to work lies with the Police Force. The Order of restorative injunction so made was clearly directed at a wrong party. In Ademuga v. Odumeru [2003] 8 NWLR [pt.821] 163 at 187 paragraph c, the Supreme Court held that a court has no power to make an order against the interest of persons who were not parties before it, as such an order is not in law binding or such parties. In the instant case the order of the lower court was against the interest of the Police Force who were not before that court. They cannot be bound by the order to restore the Respondents. See Green v. Green [1987] 3 NWLR [pt.61] 480, Erufiye v. Harilu [1993] 6 NWLR [Pt.301] 570." Per GALINJE, J.C.A. (P. 20, paras. A-G)

 

 

 

 

6

INTERPRETATION OF STATUTE - SECTIONS 18(1), 20(3)(C) OF THE POLICE ACT: The provisions of Sections 18[1], 20 [3][c] of the Police Act, 2004 with respect to the appointment of Supernumerary Police Officers

 

 

"Section 18[1] of the Police Act 2004 provides for appointment of supernumerary Police officers for protection of properties in the following words:_ "18[1] Any person [including any government department] who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application therefore to the Inspector General, stating the nature and situation of the property in question and giving such, other particulars as the Inspector-General may require." Section 20 [3][c] of the same Act provides as follows:- "Subject to the restriction imposed by paragraph [b] of this section and to the provisions of section 22 of this Act a supernumerary police Officer shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular to the provisions thereof relating to discipline." Section 2 of the police Act, defines supernumerary police officer as a police" officer appointed under section 181 19 or 21 of this Act or under authorization given under section 20 of this Act. From the section of the Police Act which are referred to above, supernumerary police officers as the name goes are police officers whose appointment and discipline lie with the police Force." Per GALINJE, J.C.A. (Pp. 16-17, paras. F-E)

 

 

 

 

7

LABOUR LAW - TERMINATION OF APPOINTMENT: Power of an employer to fire and/or reengage his employee

 

 

"I must remark purely for the sake of emphasis that an employer has the power of firing his employee and/or reengaging such an employee." Per MUHAMMAD, J.C.A. (P. 21, para. D)

 

 

 

 

 

 

 

 

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): By their statement of claim dated 19 August, 2009, the Respondents herein claimed against the appellant at the High Court of Rivers State sitting at Port Harcourt, the following reliefs:-

"i. A DECLARATION that having regard to the circumstances of the claimants appointment and/or employment, the claimants are in the service or employ [sic] of the Defendant having individually entered into their respective contracts of employment with the Defendant and are therefore not members or staff of the Nigerian Police Force as erroneously portrayed by the Defendant.

ii. A DECLARATION that the claimants are entitled to the same salaries, benefits rights, emoluments, privileges immunities, conditions of service and all legitimate protections as the Defendant has conferred upon its junior staff employees engaged other than in the security services of the Defendant company.

iii. A DECLARATION that not withstanding the appellation, police ranks, police uniforms and other police insignia, the appointments of the claimants were not made in accordance with the provisions of section 18, 19, 20, and 21 of the Police Act, CAP P29 LFN 2004.

iv. AN ORDER mandating the Defendant to take an account and compute all salaries, allowances, bonuses, subsidies and other entitlements howsoever described paid to the other junior staff employees pursuant to the terms conditions and scales of remuneration and other benefits negotiated and prescribed for junior staff employees in the management/NUPENG Negotiation 2002.

v. AN ORDER of perpetual injunction restraining the Defendant from discriminating against the claimants in favour of other junior staff employees in other departments of the Defendant's company.

vi. AN ORDER mandating the Defendant to pay the claimants through their counsel, the law firm of Falana & Falana's chambers the sums, if any, found due to the claimants from the Defendant on the taking of the said account and for interest thereon pursuant to the provisions of the Rules of this court and at the rate of 22 per cent from the date of judgment until the final liquidation of the judgment-debt."

In addition to the claims, the claimants/Respondents by a motion dated 19th August, 2009 and filed on the 21st August, 2009 prayed for interlocutory injunction restraining the Appellant from terminating or dismissing them from service pending the determination of the substantive suit.

While the suit and the motion for injunction were pending, the appointments of the claimants/respondents were terminated by the Commissioner of Police Rivers State Command, Port Harcourt. Based on the notice of dismissal, the claimant/Respondent by a motion dated and filed on the 30th November, 2009 prayed for on order of Mandatory injunction compelling the Appellant to restore the Respondents to their position as Spy Police in the Appellant, being the position they occupied before the appellant issued exhibit A with intention to obstruct whatever order the lower court might make in the Respondent's application dated 19th of August, 2009 and filed on the 21st August, 2009.

The motion for order of mandatory injunction was heard by Ogbuji J. of the High Court of Rivers State. In a reserved and considered ruling, the learned trial Judge granted the relief sought by the Respondents. 

It is against that ruling that the appellant has brought this appeal. Its notice of appeal dated 25th March 2010 and filed on the same date contains eight grounds of appeal.

Parties filed and exchanged briefs of argument.

For the Appellant, three issues have been formulated for determination of the appeal. They read thus:-

1. Whether the lower court had validly exercised the courts' disciplinary and punitive jurisdiction on the Appellant in the circumstances of this case.

2. Whether the affidavit and documentary evidence before the lower court was properly and judicially evaluated by the lower court in granting an order of Mandatory injunction in favour of the Respondents.

3. Assuming without conceding that the Respondents were employees of the Appellant, whether the lower court was right in imposing a servant on an unwilling master by granting an order of mandatory injunction restoring the Respondents as supernumerary police officers in the Appellant Company.

For the Respondent, a notice of preliminary objection is issued at paragraph 3.0 of their brief which was filed on the 15/9/2010. Thereafter two issues were formulated on their behalf for the determination of the appeal. These issues are reproduced hereunder as follows:-

1. Whether the notice of appeal which contained grounds of mixed law and facts filed against an interlocutory decision of the court below without the leave of court is a competent process that can confer jurisdiction on this court to entertain this appeal.

2. Whether having regard to the circumstances of this case and the affidavit evidence before the court, the court below was right to have granted the mandatory injunction so as to preserve the integrity of the court.

The Appellant filed a reply, brief on 6/12/2010. The Reply brief was deemed properly filed on the 7/12/2010.

Now, the position of the law is that, where a notice of preliminary objection to the competence of an appeal is issued, the court seized with the hearing of the appeal shall first consider and determine the preliminary objection. This is because if the objection is upheld, that will be the end of the appeal. See Odu v. Agbor-Henseon (2003) 1 NWLR [Pt.802] 624 at 637 paragraph B-C; Osun State Govt. v. Delami [Nig] Ltd. [2003] 7 NWLR [Pt.818] 72; Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537. On the basis of the authorities I have cited herein above I will proceed to consider the preliminary objection first. 

The Respondents' notice of preliminary objection reads as follows:-

"NOTICE is hereby given that the respondents will pray this Honourable Court by way of preliminary objection that the appeal be struck out for being incompetent and lack of jurisdiction."

The grounds upon which the objection is founded as set out in the respondent's brief of argument are as follows:-

1. That the appeal is an interlocutory appeal.

2. That the Notice of appeal contains grounds of mixed law and facts.

3. That by virtue of the provision of section 232(1) of the 1999 Constitution of the Federal Republic of Nigeria leave of the court is required before the appeal could be filed.

4. That no leave of court was sought and granted before the notice of appeal was filed.

5. That the notice of appeal is incompetent having being filed without the leave of the court.

6. That the appeal be struck out for being incompetent.

However Mr. Olusola Kazeem Salawu, learned counsel for the Respondent abandoned, the preliminary objection, since same is not supported by any argument. The preliminary objection would have been argued on the basis of the grounds of the objection before setting out issues for determination of the appeal. After setting out the grounds of objection, learned counsel went on to formulate two issues for determination of the appeal. Issues for determination of the appeal which must arise from the grounds of appeal are clearly not associated with the preliminary objection which seeks to stop the court from hearing the appeal. Since the preliminary objection is abandoned, it is hereby struck out.

The Respondents' first issue for determination of this appeal does not seem to arise from any of the grounds of appeal. A respondent who has not cross-appealed, cannot formulate issues independent of the grounds of appeal filed by the appellant. See Mashuwareng v. Abdu [2003] 11 NWLR [Pt 831] 403, Owhonda v. Ekpechi [2003] 17 NWLR [Pt 849] 326.

     However on a careful reading of the Respondents' first issue, it appears to me that, learned counsel seems to put forward argument which he should have proffered in support of the preliminary objection. This issue is challenging the jurisdiction of this court to hear the appeal. A jurisdictional issue can be raised, at any stage of proceeding either in writing or orally. Since this is an objection to the court's jurisdiction, even though improperly raised, I will nonetheless consider the argument in support.

The main argument in support of this issue is that the Appellant's notice of appeal which contains mix law and facts was filed against an interlocutory decision of the lower court without leave and it is therefore incompetent and confers no jurisdiction on this court. Learned counsel cited section 241, and 242 of the 1999 Constitution of the Federal Republic of Nigeria and S.14 (1) of the Court of Appeal Act in support of his argument. In addition learned counsel, cited the case of Maduabuchukwu v. Maduabuchukwu [2006] 10 NWLR [Pt. 989] 476 where it was held that where an appeal is against an interlocutory decision of a court, and it raises a question of facts or mixed law and facts, leave of court is required under S.242(1) of the Constitution. Also cited in support of learned counsel's submission are Popoola v. Adeyemo v. Agu [1998] 1 NWLR [Pt. 532) 129 at 141 -142, Nwadike v. Ibekwe [1987] 4 NWLR [Pt.67] 718; Jemez v Momodu [1983] 1 SCNLR 188 at 208, N.N.S.C. v. ESV (1990) 7 NWLR [Pt.164] 526 at 537, learned counsel urged this court to strike out the appeal.

In reply, Adeniyi Adegbomire Esq, Aluko Esq, Oyebode Esq and Boms Esq, Learned counsel for the appellant submitted that the appeal before this court is an interlocutory appeal against an order of mandatory injunction granted by the lower court and the appeal therefrom is as of right as provided for under section 241[1] [F][ii] of the Constitution of the Federal Republic of Nigeria.

In a further submission, learned counsel urged this court to hold that the requirement of obtaining leave of court to file the notice of appeal does not arise. In aid learned counsel cited Attamah v. Anglican Bishop of the Niger [1999] 12 NWLR [Pt.633] 1 at 11 paragraph H-B; Joseph Okpolkiri v. Bernard Okpokiri [2000] 3 NWLR [Pt.649] 461 at 472 paragraph B-C; Mashasha v. Anekwe [2001] 18 NWLR (Pt.744) 49 at 60 paragraph F-H; UBA Plc v. Coker [1996] 4 NWLR [Pt.441]  239 at 248 paragraph E-H Section 241[1][F][11] of the Constitution of the Federal Republic of Nigeria is very clear on the nature of the appeal before this court. It provides as follows:-

"241 - [i] An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases- 

[f] decisions made or given by the Federal High Court or a High Court - 

[ii] where an injunction or the appointment of a receiver is granted or refused."

The decision of the lower court against which this appeal lies is at page 189 paragraph 3 of the Record of this appeal. It reads thus:-

"In the circumstance, this application, succeeds. An order of Mandatory injunction be and is made compelling the Defendant to restore the 1st, 2nd, 3rd, 5th, 6th and 7th claimants/Applicants to their position as Spy Police in the Defendant being their position before the Defendant issued exhibit 'A' with intention to obstruct whatever order this court might wish to make in the claimants application dated 19th August, 2009 and filed on 21st August, 2009."

Clearly the decision of the lower court was one of injunction and the decisions cited by both parties in respect of this issue have stated without any contradiction that an appeal against a grant of injunction by the lower court lies to this court as of right and an appellant does not need leave before he can bring an appeal against such decision. 

In the authority of Elobisi v. Onyeonwu [1989] 5 NWLR [Pt.120] 224 at 231-232 paragraph F-A, which was cited by the Respondents, this court said:- 

"I must say as was made clear by the court on hearing this application that prayers [I] and [II] above are unnecessary. The proposed appeal is against an interim-injunction. By virtue of section 220[1][g][11] of the 1979 Constitution no leave is required to appeal against it"

The court funher held that the provision of S.15[1] of the Court of Appeal Act 1976 was inconsistent with S. 220[1][g][11] of the Constitution and was therefore void to the extent of the inconsistency.

Section 220[1][g][11] of the 1979 Constitution and section 15 of the Court of Appeal Act cited above are the same as 241[1][f][11] of the 1999 Constitution and section 14 of the Court of Appeal Act 2004 respectively.

There is therefore no merit on the argument in support of the Respondents' 1st issue, which I resolve in favour of the Respondents.

Now having read through the argument in support of the three issues formulated by the appellant and the Respondents, 2nd issue, and having also read the record of this appeal, I am of the firm view that the only issue calling for the determination of this appeal is whether the dismissal of the Respondents, was effected by the Appellant in this appeal, and if not could mandatory injunction "to reinstate them be validly made against the said Appellant.

Section 18[1] of the Police Act 2004 provides for appointment of supernumerary Police officers for protection of properties in the following words:_

"18[1] Any person [including any government department] who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application therefore to the Inspector General, stating the nature and situation of the property in question and giving such, other particulars as the Inspector-General may require."

Section 20 [3][c] of the same Act provides as follows:-

"Subject to the restriction imposed by paragraph [b] of this section and to the provisions of section 22 of this Act a supernumerary police Officer shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular to the provisions thereof relating to discipline."

Section 2 of the police Act, defines supernumerary police officer as a police" officer appointed under section 181 19 or 21 of this Act or under authorization given under section 20 of this Act. 

From the section of the Police Act which are referred to above, supernumerary police officers as the name goes are police officers whose appointment and discipline lie with the police Force. The question for settlement here therefore is whether the Respondents were employed as supernumerary police officers.

By the statement of claim filed by the Respondents at the lower court on the 19/08/2009m the Respondents clearly admitted at paragraph 1 that they are supernumerary police officers engaged in the security service of the Appellant herein. For avoidance of doubt, let me reproduce hereunder paragraph 1 of the statement of claim as follows:-

"The claimants are familiarly addressed as spy police officers and are also commonly known as supernumerary police currently engaged in the security services of the Defendant in Port Harcourt Rivers State and in Lagos, Lagos State."

By the Daily Order S/No. 24 of 25/11/2009, the dismissal of the Respondents' herein by the commissioner of Police Rivers State Police Command was announced.

That Order reads as follows:-

"DAILY ORDER S/NO 24 of 25/11/2009 

SUB NO.1 - DISMISSAL FROM FORCE:

The Commissioner of Police, Rivers State Police Command, has approved the Dismissal of the under listed Spy Police Officers W.E.F. 21st November, 2009, after an Orderly Room Trial at the Provost Office of the State Police Headquarters:-

F/NO. 7796 SPY/PC TARI IMOLADE

F/NO. 7825 MGBECHI IGBUDU

F/NO. 7833 SPY/PC GOODLUK IKEZI

F/NO. 7806 SPY/PC KIO AWUSA

F/NO. 7819 SPY/PC BONNIE BAMLAYE

F/NO. 7846 SPY/PC NWOKOMA NWACHUKWU

The Ag. Station officers, of the affected locations are to take note. You are to debit them of all police uniforms and accoutrements, with the TOTAL ID [Supernumerary Police] Badge in their possession..."

This daily order exhibit A which is at page 105 of the record of this appeal was signed by CSP Ifeanyi Eirabor O/C Police unit TOTAL E & P. PHC.

Although section 18 [5] of the police Act allows the Appellant herein to give notice to the effect that it is no longer interested in the service of any Supernumerary Police Officer appointed under the Police Act two months to the discontinuation of service, there is no evidence that it exercised that right. The Police Force dismissed the respondents for reasons that they faced Orderly room trial and were found guilty. From the provision of the Police Act, the Appellant herein neither had power to appoint Supernumerary Police Officers nor dismiss such officers from service. The Appellant has every right just like any Nigerian to request for services of Police Officers, but that does not include the right to dismiss such officers.

The learned trial judge in her ruling, which is subject matter of this appeal, was aware that the dismissal of Respondents herein was not carried out by the Appellant. 

This acknowledgement is reflected in the ruling of the learned trial judge at page 187, where she said:-

"If the Defendant is saying it did not carry out the dismissal of the claimants. But it is the Defendant that is sued as the "Defendant" who ought to inform whosoever is involved in the dismissal to stay any action; pending the determination of the motion on notices which was already served on the Defendant."

From the proceedings of the lower court, there is no where it is shown that the Appellant herein had the responsibility and power to stop the police from trying their officers in accordance with their rules of engagement. At best, the Respondents would have applied to join the Police force in their suit.

An order of Mandatory injunction can only be granted on the clearest evidence as well as very high standard of proof so that at the trial it will still appear that the order was correctly made. Where a restorative mandatory injunction is made against a party who cannot consummate same, such order is made at large and it is useless. See NDIC v. SBN PLC [2003] 1 NWLR (PT.801) 311, ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT.224) 396. It is only in exceptional cases that a court will grant a mandatory injunction, such as where the defendant surreptitiously does a thing in order to steal a march against his opponent during the pendency of a suit claiming an injunction. See NDIC V. SBN Plc [supra], Daniel v. Gerguson (1891) 2 Ch. 27.

In the instant case, the power of dismissal of the Respondents and employing or restoring them to work lies with the Police Force. The Order of restorative injunction so made was clearly directed at a wrong party. In Ademuga v. Odumeru [2003] 8 NWLR [pt.821] 163 at 187 paragraph c, the Supreme Court held that a court has no power to make an order against the interest of persons who were not parties before it, as such an order is not in law binding or such parties. In the instant case the order of the lower court was against the interest of the Police Force who were not before that court. They cannot be bound by the order to restore the Respondents. See Green v. Green [1987] 3 NWLR [pt.61] 480, Erufiye v. Harilu [1993] 6 NWLR [Pt.301] 570.

For the reasons I have set out in this judgment, I find this appeal meritorious and same is accordingly allowed, the decision of the lower court in which the appellant herein is to restore 1st, 2nd, 3rd, 5th and 7th Respondent to their position as spy police in the Appellant is hereby set aside and quashed.

Parties shall bear their respective costs.

MUSA DATTTJO MUHAMMAD, J.C.A.: I read in advance the lead judgment just delivered by my learned brother Galinje JCA, I entirely agree with his reasonings and conclusion therein that this appeal is meritorious. Particularly for the more detailed reasons articulated in his lordship's lead judgment, I also allow the appeal.

I must remark purely for the sake of emphasis that an employer has the power of firing his employee and/or reengaging such an employee. His lordship has thoroughly demonstrated in, his judgment that the respondents herein are engaged by the Nigeria Police force and it is this same employer that terminated their employment. That employer is not a party to the instant matter. The lower court's restorative order in respect of the employment of the respondents that had been determined by the latter's employees is legally untenable and perverse. I set that order aside too.

In allowing the appeal, I also abide by the consequential orders decreed by his lordship in the lead judgment including the orders pertaining to the costs of the appeal.

T. O. AWOTOYE, J.C.A.: I entirely agree.

     Appearances       

T. J. Krukrubo with M. E. Ugbeta

For the Appelants

       

O. K. Salawu

For the Respondents