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In The Federal Supreme Court

On Monday, the 23rd day of December 1963

 

 

Before Their Lordships

 

Sir Adetokunbo Ademola

......

Chief Justice of Nigeria

John Idowu Conrad Taylor

......

Justice, Supreme Court

Vahe Bairamian

......

Justice, Supreme Court

 

F.S.C. 422/1962

 

Between

 

John Holt Nigeria Limited

John Holt & Co. (Liverpool) Ltd

(Joined by Order of Court)

 …..

 Appellants

 

And

 

Holts African Workers Union of Nigeria and Cameroons

.......

Respondents

 

 

 

Reasons for Judgement of the Court

Given by

Sir Adetokunbo Ademola. C.J.N.

 

 

The plaintiffs/respondents are members of a Trade Union; and as the name signifies, members of the Union are employed either by the firm of John Holt Nigeria Ltd. (the 1st defendants/appellants) or John Holt & Co. (Liverpool) Ltd. (2nd defendants/appellants). It would appear that the firm of John Holt & Co. (Liverpool) Ltd. (2nd  defendants/appellants) intended to carry out a Reconstruction Plan in the interest of their business, the terms of which the plaintiffs/respondents view with some concern. The latter therefore proceeded to bring an action against the 1st  defendant, John Holt Nigeria Ltd, seeking a declaration and injunction in the following terms:-

 

"(1)      for a declaration that the Reconstruction Plan intended to be put into effect by the defendant on 1st September, 1961, whereby the central organising body of Nigerian workers in the defendant Company, that is to say, the plaintiff Union, will be abolished by the defendant is unlawful as being an infringement of the right of the members of the plaintiff Union to belong to a trade union for the protection of their interests, and as being a violation of the Nigeria (Constitution) Order in Council, 1960;

 

(2)        For an injunction restraining the defendant, its servants or agents from carrying out the said Reconstruction Plan".

 

A few days after this action had been filed, the plaintiff Union filed a Motion for an interim injunction to be granted to restrain the 1st defendant (John Holt Nigeria Ltd.) from putting into effect the proposals contained in the Reconstruction Plan until the determination of the suit. Despite the protests made by the 1st defendant that they were not employers of the members of the plaintiff Union and that at the material time to the action the 1st defendants were managers of the principal Company's (2nd defendants) business in Nigeria, and also that the Reconstruction Plan which is the subject matter of the declaration and injunction sought had been introduced and implemented by the principal Company (2nd  defendant) as a lawful re-organisation of its Company structure, the learned Judge before whom the Motion was argued on the 11th September, 1961, made the following ruling:

 

"After a close study of the affidavits and after having carefully considered Counsel's arguments in the application, I am of the opinion that a 'prima facie' case has been made out for an Interim Injunction. I therefore order that an Interim Injunction do issue against the defendant Company on the terms of this action”

 

On the 12th September, 1961 the Plaintiff Union filed a Notice of Motion praying that John Holt & Co. (Liverpool) Ltd. (2nd defendant) be joined in the suit as 2nd defendant. On the 18th September, 1961 the Judge granted the prayer and ordered that the 2nd defendant be joined as a defendant, and proceeded to order that the interim injunction previously granted against the 1st defendant should also operate on the 2nd defendant.

 

On the 21st September, 1961 the 1st defendant filed a Motion asking for leave to appeal against the Order for interlocutory injunction made against it. Leave was granted on the 9th October, 1961 and two days later notice of appeal was filed.

 

On the 11th December, 1961, the 2nd defendant, who had been joined in the action, moved the Court to discharge the Order for Interlocutory injunction made against it on the 18th September, 1961 on the ground that the Reconstruction Plan was introduced as a re-organisation of their business, and that every point in it which affects different groups of employees of the firm had been previously discussed with them. Also that the Plan had been introduced before the present action: the Plan was exhibited. The learned Judge refused to discharge the Order, whereby the 2nd defendant also appealed to this Court.

 

It is not for this Court, at this stage, however, to enquire under what branch of the law the plaintiffs have brought their complaint or claim for a declaration; although the remedy is discretionary, there are certain guiding principles upon which an interim injunction can be granted. We have referred to the first ruling made by the learned Judge from which we are unable to say what affected his mind in the arguments before him and upon which he granted the plaintiff's prayer. The 2nd ruling does not elicit his reasons for joining the 2nd defendant in the action and for making the order that the injunction should operate against them. On the motion by the defendants for an Order to discharge the Order of Interim Injunction, the learned -Judge gave no reason for saying

 

"it is in my view that it will neither be expedient nor equitable that the order should be discharged".

 

We therefore have to ask ourselves if, in our view, there was evidence before the Judge which discloses a strong "prima facie" case in support of the rights which they assert. In Smith v. Grigg Ltd. (1924) I K.B. 655 C.A. at p. 659, it is said that this is a test to be applied.

 

The appellants in this case, particularly the 2nd appellant, made it clear in the affidavits of Mr Noble, at different times, that the Reconstruction Plan prepared by the Company is in the interest of the Company which is exercising its lawful rights for its lawful re-organisation and incorporation of the new Nigerian companies as a progressive measure, to devise an organisation and a pattern and method of trade which will offer the prospect of a net yield of 20 per cent per annum before tax, and does not in any way interfere with the rights of the respondents. The first question therefore which should suggest itself to the learned Judge ought to be whether or not the balance of convenience favours the grant. Thus, in Hilton v. Earl of Granville (1841) Cr. & Ph. 283, where an interim injunction to restrain the working of mines was sought by the owner of houses on the surface which it was feared would be totally destroyed or irreparably damaged, Lord Cottenham, L.C., after considering the whole facts came to the conclusion that the injury to the house owner, if he sustained it and should ultimately prove to be right, would be to a great extent capable of reparation; whereas, by no possibility, can the injury done to the mine owner be compensated if he is prevented for a considerable length of time from exercising a right which, in a certain event, may turn out to be his in the full extent to which he claims it, refused to grant the interlocutory injunction. Earlier in his judgement, the learned Lord Chancellor said:—

 

"I have to determine, whether, balancing the question between these two parties, and the extent of the inconvenience likely to be incurred on the one side and on the other, it is the most proper exercise of the jurisdiction of the Court to grant the injunction or to withhold it."

 

From a perusal of the record of appeal, we are unable to see from the proceedings before the learned Judge that the plaintiffs have shown particular good reasons why an interim injunction should be granted them, nor are we able to deduce any from the aforesaid two rulings made by the Judge, For it is not sufficient that the grant of an injunction can do no harm or that the balance of convenience favours the grant. In Challender v Royle (1887) 36 Ch. D.425 at p. 436, Cotton, L.J., put the matter thus:—

 

"It is very true that in all cases of interlocutory injunction the Court does consider and ought to consider the balance of convenience and inconvenience in granting or refusing the injunction. But there is another very material question to be considered, has the plaintiff made out a prima facie case ? That is to say if the evidence remains as it is, is it probable that at the hearing of the action he will get a decree in his favour ? "

 

The principles upon which the Court acts in granting interlocutory injunctions to our mind must be strictly observed, and of course it is impossible to lay down any general rule by which the discretion of the Court ought, in all cases, to be regulated; but it must be borne in mind that interlocutory injunctions are not granted as of course. It appears to us that what the plaintiffs have asked for in this matter is for the Court to prevent the defendants from carrying on their business in the manner they think it beneficial to themselves, and this before the trial of the action.

 

There are two aspects of this matter we think it our duty to comment upon. The first is the hardship a matter of this nature may cause a business house. The first application for an interlocutory injunction was made in August, 1961; the second in September 1961. The appeal which followed was heard over two years later, indeed in October, 1963. It should have been obvious to the trial Judge that this is a matter in which time and inconvenience would be saved by the hearing of the substantive action itself instead of the time spent on hearing arguments on an interlocutory injunction and granting order for leave to appeal. Everything ought to have been done to avoid trying the same question on two occasions. The second aspect is the insistence of the learned Judge to continue the hearing of the application for interlocutory injunction when it was so obvious from the facts before him that the object for which the injunction was asked for, namely, the introduction of a Reconstruction Plan to the defendant's company, had already been effected, and the Plan had been introduced before the application for the interim injunction was filed. In other words, an interlocutory injunction was no more a remedy for an act which had already been carried out.

 

It was for the foregoing reasons we allowed this appeal on the 29th October, 1963, when we set aside the interlocutory injunction granted by the learned Judge.

 

 

John Idowu Conrad Taylor. JSC.

 

I concur.

 

Vahe Bairamian. JSC

 

I concur.

 

 

Counsel

 

 

Chief M.E.R. Okorodudu, Q.C.

with him

V. A. Kushimo

......

For the Appellants

 

 

 

A. A. Osibogwu

......

For the Respondents

 

 

Editors Note

This suit was commenced in Lagos as LD/389/61