Shell Petroleum Development Company of Nigeria Limited V. Henri E. Omu (1998)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A,

On 19 January, 1998, Okor, J., sitting at the High Court, Port Harcourt, made an order of interlocutory injunction against the appellant/applicant upon a notice of motion by the respondent as plaintiff in the suit in which he prayed as follows:

“An order of interlocutory injunction restraining the defendant, either acting by itself, privies, servants or agents, from taking any disciplinary action against the plaintiff, either by way of warning, suspension from duty, termination or summary dismissal or howsoever interfering (with) the plaintiffs contract of employment, rights and privileges as a confirmed staff of the defendant company, pending the determination of the substantive suit.”

At the time of the ruling in which the interlocutory order was made, the plaintiff had not filed any pleading. But the case to be determined in the substantive action is sufficiently, I think, indicated in the reliefs stated in his writ of summons and it is perhaps instructive to consider the interlocutory injunction against the background of those reliefs. I shall reproduce them (unedited) as follows:

“(1) A declaration that the finding by the defendant’s audit report that the plaintiff is culpable for having caused the defendant the avoidable loss of N5,000.000 in 1994, without hearing the plaintiff or giving him an opportunity to be heard is ultra vires, contrary to the principle of fair hearing; unconstitutional, a gross violation of the provisions of the African Charter on Human and Peoples’ Rights and consequently null and void.

(2) A declaration that the defendant, either acting by itself, servants, agents, directors or privies, is not entitled to take any punitive measures against that plaintiff, either by way of suspension from duty, dismissal from the employment of the defendant, termination of his appointment or howsoever interfering with the plaintiff’s contract of employment with the defendant under any guise, based on the recommendation of the defendant’s Eastern Divisional Defalcation and Avoidable Loss Committee or any of the defendant’s servants, agents or privies, acting on the said audit report.

(3) An order selling aside the said defendant’s finding contained in the said audit report as far as the same affects the plaintiff or contains any adverse finding or indictment of the plaintiff.

(4) An order of perpetual injunction restraining the defendant, either acting by itself, servants, directors, agents or privies from taking any disciplinary measures or action against the plaintiff, either by way of suspension from duty, demotion, loss of promotion or increment, warning, termination of his appointment or dismissal from the employment of defendant, pursuant to the said audit report and recommendation of the said Defalcation and Avoidable Loss Committee or any other committee or body within the defendant company, acting on the finding of the said Alafun Audit Report(s) and recommendation of the said committee.”

The affidavit in support of the motion deposed to a number of facts and insinuations, including motive and malice against one Mr. Alafun as regards the respondent’s activities in a department of the applicant company known as Public and Government Affairs East (PAGE). It is sufficient to refer to 4 paragraphs out of the 2S-paragraph affidavit which read as follows:

“14. That based on the finding of the Alafun Committee the Eastern Divisional Defalcation Committee, to which Mr. Alafun is the secretary, had recommended that all those indicted by its report be subjected to disciplinary measures and the defendant proceeded to attempt to discipline my boss, Mr. Lawson Jack, who successfully got the High Court of Rivers Stale to restrain the defendant.

15. That as I did not consider myself involved in any wrong doing considering the various commendations I had received from the defendant and having left PAGE and not concerned with the 1996 furniture award and supply which Alafun had referred to my department for the investigation, I kept enjoying my leave until last Friday when I learnt that since the court had restrained the defendant from taking any disciplinary action against Mr. Lawson Jack, the defendant had decided last week to punish me instead, based on the indictment contained in Mr. Alafun’s report and papers have been raised against me and forwarded to the Managing Director of the defendant for his approval to met (sic) out punishment to me, on account of the finding of Ala fun audit report against me, following his investigation in PAGE School Furniture Supplies/Deliveries Contract 1993,”1996, instead of the 1996 which was the subject of his investigation. Exhibited and marked ‘E’ is an extract from the minutes of the Eastern Divisional Defalcation Committee which recommended disciplinary action against me to the Managing Director of defendant held last week, under the heading ‘Status of Disciplinary Action Recommendations. ‘
16. That any moment from now the defendant will take severe disciplinary action against me which would either be in the form of last warning, suspension from duty, demotion, loss of increment, termination of my appointment or summary dismissal.
17. That unless this application is heard expeditiously the defendant will proceed to quickly suspend me from duty, terminate my appointment or altogether summarily dismiss me and it would be difficult or impossible to reinstate me.”

It will be noted in paras. 16 and 23 that the respondent simply speculated on what the applicant might do to his employment which necessitated his suit in court and the interlocutory injunction he subsequently obtained. In paras. 14 and 15 he alluded to how one Mr. Lawson-Jack similarly succeeded in the High Court to get an interlocutory injunction. Having so made that reference, it has become pertinent to draw attention to the result on appeal of that case decided by this court on 19 March, 1998 and now reported as Shell Petroleum Development Company of Nigeria Ltd. v. Stephen Lawson-Jack (1998) 4 NWLR (Pt.545) 249 which the lower courts are constitutionally bound to follow. This court set aside that injunction as unlawful and unavailable in such a matter.

In fairness to Okor, J., as at the date he gave his ruling on 19 January, 1998, he had not the benefit of the said decision of this court because it had not been made. The present case, just as the Lawson-lack’s case, is one of ordinary master and servant relationship. The learned trial Judge acknowledged this when he observed in his said ruling:

“It is admitted that the relationship between the plaintiff and the defendant is one of master and servant which said relationship is governed by the contract of employment.

It is also admitted that such relationship can be determined or terminated in accordance with the terms of the contract of employment.”