Mrs J.O. Akhigbe & Anor V. Mr. George Ashimedua (2002)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

The respondent as plaintiff in suit No. EHC/363/95 claimed against the appellants as defendants as follows:-

“The plaintiff claims jointly and/or severally against the defendants, the sum of N2,500,000.00 (Two million, five hundred thousand naira only) being damages for defamation falsely and maliciously published to several persons within and outside Effurun in Delta State and far beyond by 1st defendant (for whose acts and/or omissions the 2nd defendant is vicariously liable) of and concerning the plaintiff in and contained in several letters (and also orally) particularly those of the 27th June, 1994; and 18th April, 1994 accusing the plaintiff of fraud and abuse of 2nd defendant’s Medical Scheme for employees”.

For a better understanding of this case, I consider it necessary to state the facts of it at this early stage. The respondent was a staff of the 2nd defendant (hereinafter called 2nd appellant) and at the material time, he was working at the Effurun branch of the 2nd appellant. The 1st defendant (hereinafter called 1st appellant) was the manager of the 2nd appellant, at its Effurun branch and in that capacity was responsible for the day to day running of the affairs of the 2nd appellant. The 2nd appellant has a medical scheme which allows for the medical treatment of staff of the 2nd appellant and dependants of not more than four. The 2nd appellant made rules and regulations regarding the utilisation of the said medical scheme so that employees do not abuse the scheme which will have the resultant effect of destroying the scheme and the 2nd appellant itself. One of such rules was the rule requiring employees to restrict themselves to two clinics out of a number of selected clinics. This was to ensure that individual employees expenses on medical bills was under control. The respondent, it was alleged regularly breached the laid down rules and in the result presented ridiculous medical bills in a regular basis claiming that both himself, wife and children were always sick. It was also alleged that the bills for a few months were usually several times over his annual salary.

This scenario went on for some time and in consequence therefore, the 2nd appellant issued queries to the respondent on the suspected abuse of the 2nd appellant’s medical scheme. The respondent was said to refuse to answer any of the queries which were issued to him. Instead, he engaged his solicitors to write a letter of demand to the appellants claiming that by the letter from the 2nd appellant to him, his reputation had been injured. The 2nd appellant later placed the respondent on suspension and subsequently dismissed him from its employment. In the meantime, the respondent went to court to claim N2,500,000.00 (Two million, five hundred thousand naira only) from the appellants by his writ of summons. Before the exchange of pleadings and after he had been dismissed from the services of the 2nd appellant, the respondent filed a motion seeking amongst other things the reliefs that the 2nd appellant should continue paying his salaries etc, during the period of his suspension when in actual fact he had been dismissed.

After hearing arguments on the motion, the learned Judge granted the two prayers on the motion paper even though it is manifest that the prayers were not rooted in the substantive suit and were not ancillary to it. Apart from granting the prayers on the motion paper, the learned Judge went ahead to nullify the dismissal of the respondent by the 2nd appellant even though the question of the legality of the respondent’s dismissal was not an issue before the court. It is by reason of this decision of the court below that the appellants filed this appeal on a number of grounds. From the grounds of appeal the appellants raised three issues for determination. They are:-

“1. Whether the learned trial Judge was right in granting the prayers on the motion paper when the application was not premised on the substantive suit before the court.

2. Whether having regard to the application before the court, it was right of the trial Judge to nullify the respondent’s dismissal from the employment of the 2nd applicant/appellant.
3. Whether having regard to the state of affidavit evidence before the court, the learned trial Judge rightly exercised his discretion in granting the prayers on the motion paper”.

The respondent identified two issues for determination in this appeal.

They are:

1. Whether the learned trial Judge rightly exercised his discretion, when he granted the prayers on the motion paper in view of the reliefs claimed in the writ of summons and statement of claim.
2. Whether the learned trial Judge pronouncement on the letter of dismissal of the respondent was proper in view of the prayers of the respondent on the motion paper.

In my view, from the facts of this case, issue numbers 1 and 2 at page 2 of the appellants’ brief go to the root of this matter, therefore, the determination of the said two issues one way or the other should take care of this appeal. I shall therefore treat this appeal in the light of the first two issues in the appellants’ brief.

For the appellants’ it was submitted that the respondent’s action against the appellants at the lower court was for the sum of N2,500,000.00 (Two million, five hundred thousand naira only) for an alleged defamation of his character arising from purported malicious publication of letters concerning the respondent by the appellants to several persons within and outside Effurun, Delta State and beyond. The claim of the respondent as endorsed on the writ of summons is contained at page 2 lines 1 -14 of the records. It was stated that in the action the respondent was seeking a vindication of his reputation and reparation for an alleged damage to the said reputation. It was contended that the respondent’s action had nothing to do with his dismissal by the 2nd appellant from it’s employment.

It was submitted that the parties joined issues as per the statement of claim and defence filed subsequently. It is the contention of the appellants that the fact that the action was simpliciter an action predicated on defamation and no more is clearly borne by the records.

See page 5 lines 13-18, pages 12 lines 32-37 and page 13 lines 9-19 of the records.

It was further submitted that the statement of claim filed by the respondent, also explicitly defined the action in court as being entirely grounded in defamation. It was argued that it was on this that the court below was to adjudicate before the interlocutory application was filed. See page 49 lines 10-35 which is paragraphs 8, 9 and 10 of the statement of claim. See also page 50 lines 1-8 of the records.

See paragraph 15 of the statement of claim at page 51 lines 20-25 of the records. See also paragraph 17 of the statement of claim lines 312 and paragraph 33 at page 53 lines 7-20 of the statement of claim.

It was contended that the claim before the court having been sufficiently stated and defined by the writ of summons, the court below had no jurisdiction to extend or expound the frontiers of the respondent’s action before it.

Learned counsel for the respondent submitted that the decision to grant an interlocutory injunction is an equitable jurisdiction which the courts exercise in the light of the peculiar facts presented before it by applicant. It was argued that a trial Judge has a discretionary power to grant or refuse an application for interlocutory injunction and once the discretionary power is judicially and judiciously exercised, the appellate court cannot set aside such ruling. Reliance was placed on the case of A.C.E. v. Awoghoro (1991) 2 NWLR (Pt.176) 711 at pages 718-719.

1t was submitted that in the action, the respondent’s motion was supported by affidavit evidence and exhibits that were not only convincing but vindicated the well laid down principles for granting the injunction. It was contended that the respondent showed in his affidavit that he has a legal right which he seeks to protect and that he has good chances of success in the relief he was seeking. It was submitted that the appellants failed to prove by credible and cogent evidence and legal principles that the trial Judge did not exercise his discretion properly in granting the prayers on the motion paper. It is the contention of the respondent that the reliefs claimed by him in the motion paper is sustainable in law.

It is doubtless clear from the records that the plaintiff’s action was for damages for defamation. Inspite of the definite and clear action before the High Court, the respondent filed a motion on notice for Interlocutory reliefs on 10th January, 1996 to wit:

“1. An order of court directing the defendants/respondents to pay and continue paying in full plaintiff/applicant’s salaries and allowances including his medical expenses and ex-gratia payment during the period of his purported suspension from duty pending the hearing and determination of the substantive suit.

4. An order of court restraining the defendant/respondent from terminating, dismissing or transferring plaintiff/applicant from the place of employment at Effurun Branch of First Bank of Nigeria, Plc pending the determination of the substantive suit”. (see page 4 lines 18-23 and page 55 lines 14-26 of the records).

It is manifest from the records, and I have no doubt in my mind, that the prayers sought on the motion paper are completely different from and have nothing whatsoever to do with the substantive suit.

It must be noted that the court below assumed jurisdiction on the motion filed by the respondent and went ahead to grant the prayers sought by the respondent. See page 88 of the records lines 15-18 where the learned trial Judge said:-

“This Honourable court hereby exercises his (sic) discretion in applicant (sic) favour by granting the two prayers on the motion paper”.

It seems to me that the High Court had no jurisdiction to make the orders. The application before the court was not premised on the substantive action of defamation.

An interlocutory application must be premised on the substantive suit before a court can entertain it. If it were otherwise then litigants can always steal a match on the opponent each time a case is heard by just slotting in a motion, at an interlocutory stage obtaining an order from the back door which is completely unrelated to the action in court and then securing orders affecting rights of parties without the other side having had an opportunity to join issues on matters.

Hon. Justice Achike, J.C.A. (as he then was) delivering the leading judgment in the case of Adewale Bello Construction Co. Ltd. & Anor v. International Bank for West Africa (1991) 7 NWLR (Pt. 204) page 498 at 507 emphasised the position of the law on the point when he said:-

“It is patently clear, as earlier noted, that respondents claim against the appellants is founded on contract or quasi-contract and the question of validity or otherwise of the deed of legal mortgage-mentioned in passing in the statement of claim is wholly of no moment in the successful prosecution of that claim. It is not equity nor justice for the interim injunction to be granted as it were, on the basis of the respondents’ claim in the substantive suit. In the final analysis, an application for an interlocutory injunction must be predicated on an action pending in the court. In the appeal under reference, there is no action pending in respect of the deed of legal mortgage either by way of counter-claim or a cross action. In short, the application is not rooted in any pending action. This is enough reason to refuse the application because the appellants have no plank upon which to pray for interlocutory injunction”.

The learned Justice went further at page 508 paragraph ‘A’ of the report that:-

“It must be further underlined, and it goes without saying, that the limits of an application for interim injunction are the claim before the court”.

From the above statement or observation of Achike, J.C.A. (as he then was), the competence of the application is determined by the substantive relief before the court and no more. If the application is not premised on the substantive action (as the case in hand), the application is not competent and the court has a duty to dismiss it.This is exactly what the court below ought to have done but it did not do so. Instead, the court proceeded to grant the prayers sought.

In Chief R.A. Okonya & Ors v. S. Santilli & 2 Ors (1991) 7 NWLR (Pt. 206) page 753 at 765, Tobi J.C.A. said:-

“An interlocutory application or motion should normally be based on the substantive action before the court. In other words, an interlocutory application or motion should normally be based on specific reliefs sought in the substantive action. As a general rule therefore, if an interlocutory application or motion does not seek a prayer related to the cause of action, the application or motion is incompetent… an applicant cannot unilaterally make a “U” turn to take a summersault in an interlocutory application with little or no nexus with the cause of action and the reliefs sought. Talking mildly, that will be tantamount to overreaching the respondent. Talking seriously, that will be tantamount to an abuse of the judicial process and a court of law has the competence and capacity to protect itself from being abused”.

It must be noted that in the case in hand, the respondent’s writ of summons did not include any reliefs concerning his dismissal from the services of the appellants. To succeed in the tort of defamation the respondent does not need to be a staff of the appellants. It is not a necessary ingredient of the cause of action. The respondent can pursue his action as formulated without being a staff of appellants. There is no nexus whatsoever between employment and defamation. It seems to me that to proceed as the court below did to grant the reliefs sought on the motion paper was to my mind, an exercise far in excess of its jurisdiction over the motion in the first place.

This was the position taken by the court in Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) page 605 at 624 where Kolawole, J.C.A. said: ” In my view, there must be endorsed on the writ of the plaintiff the commission of a wrong which is the cause of an action followed by an interlocutory application. Where an interlocutory application as in the motion before the court below is not based on a substantive relief claimed, in the writ of summons, the court lacks jurisdiction to award such injunctive order. See also the Supreme Court decisions in Abel O. Woluchem v. Dr. Charles Inko-Tariah Wokoma (1974) 3 SC 153 at page 155 and 156. Also reported in (1974) 1 All NLR (Pt. 1) 605; Adiatu Ladunni v. Oludoyin Adekunle Kukoyi & Ors (1972) 3 SC 31 at page 33-34, 34-35 and 35-36.

The last issue for determination in this appeal is issue No.2 in the appellants’ brief. Learned counsel for the appellants submitted that in considering the respondent’s interlocutory application before the High Court, wherein the respondent prayed for an order that the 2nd appellant should continue to pay his salary/allowances during his suspension etc, when in fact he had been dismissed, the learned Judge of the High Court after granting the prayers asked for, went ahead to nullify the respondent’s dismissal. See page 4 lines 18-23 and page 55 lines 14-16 of the records, where the court below ordered amongst other things as follows:-

“… this Honourable court is of the view that the said letter of dismissal is null and void abinitio and is of no effect”.

Learned counsel for the appellants argued that the direct effect of the order of the lower court annulling the respondent’s dismissal is that by that order, the High Court granted to the respondent a relief which the respondent did not claim in either the writ of summons or by the motion.

The sum total of the submissions of the learned counsel for the respondent is to the effect that what the trial Judge did in respect of the motion for interlocutory injunction placed before him was correct in law. It was submitted that the appellants failed to prove by credible and cogent evidence that the learned Judge did not exercise his discretion properly in granting the prayers on the motion paper.

It was also contended that the appellants failed to prove by credible evidence that the reliefs claimed by the respondent in the motion paper could not be sustained in law. It was further stated that the trial court rightly annulled the dismissal letter issued to the respondent which was issued during the pendency of suit at the lower court.

I would like to point out that in the substantive action, the respondent claimed damages for an alleged defamation. By the motion of 10th January, 1996 on which the learned Judge at the court below delivered his ruling, the respondent merely asked court for injunction to prevent the appellant from terminating, dismissing and or transferring him from Effurun branch of the appellant bank. He also asked the court to order the appellants to continue paying his salaries and allowances including medical expenses and ex-gratia payments during his suspension. It is manifest from the records that at the time the court below made its orders under reference the respondent had been dismissed by the 2nd appellant. The respondent did not ask the court to nullify his dismissal as the dismissal of the respondent by the 2nd appellant was not one of the issues for adjudication in the suit. It is my view that the direct effect of the order of the lower court annulling the respondent’s dismissal is that by that order, the High Court granted to the respondent a relief which the respondent did not claim in either the writ of summons or by the motion. It is also my strong view that by annulling the dismissal of the respondent when the parties did not join issue on the subject, the High Court granted to the respondent more reliefs than he sought from the court and also violated the appellants’ fundamental rights not having heard the appellants on the point before making the order.

It seems to me that when a party approaches a court, he or she must specify with certainty that which he or she needs from the court. The jurisdiction of the court is limited to granting to the claimant only those claims or less than the reliefs sought. A court has no jurisdiction to grant a relief which a party did not claim from it. In the case of Ilodibia v. N.C.C. Ltd. (1997) 7 NWLR (Pt. 512) page 174 at 202-203, where Adio, J.S.C. said:-

“A party who is a plaintiff should make up his mind about the reliefs which he wants to claim. In the same way, he should give very careful and due consideration to the question whether or not he should withdraw any part of his claim because having withdrawn any part of his claim he may find that, at the end of the day, there is no relief which the court can grant to him on the basis of those aspects of his claim that are left. A court has no power to award to a party what he has not claimed”. See also Adefulu & 16 Ors v. Okulaja & 7 Ors (1996) 9 NWLR (Pt.475) page 668 at 706; Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) page 272 at 290; Ekpenyong v. Nyong (1975) 2 SC 71 at 81-82; Kalio v. Kalio (1975) 2 SC 15 at 17-19.

From the foregoing, it goes without saying that the orders made by the court below annulling the dismissal of the respondent is wrong and made without jurisdiction. Since the respondent never claimed the relief.

Again, apart from granting to the respondent a relief which the respondent did not claim, the question of dismissal of the respondent was taken suo moto by the court below. It is manifest from the record that the appellants were not allowed an opportunity to be heard on the issue. It seems to me therefore that the appellants were deprived of their constitutional light of fair hearing by making the order which affected appellants right without any hearing on the point. See Ezeonwu v. Onyechi (1996) 3 NWLR (Pt. 438) page 499 at 507.

I hasten to add that the order annulling respondent’s dismissal does not fall within the recognised exception of ancillary reliefs.

The relationship of master and servant is based on contract while defamation comes under the law of tort. The order of the court below is not a necessary consequence of the reliefs sought in the substantive suit. They have nothing in common. A court can only make ancillary orders to a main relief if such a relief of necessity flow from or is a direct consequence of the main relief. That was not the situation in the case in hand.

In the light of the foregoing, this appeal has merit and it is therefore allowed. I set aside the ruling of Emordi, J. sitting at High Court No.3 Effurun Delta State, delivered on 22nd April, 1996 as the court lacked the jurisdiction to entertain the motion and the orders made therein are null and void and of no legal effect whatsoever for the reasons which I have given in this judgment. I make no order on costs.

Other Citations: (2002)LCN/1086(CA)