IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z. M. BASHIR
Dated: 24th day of August, 2020 SUIT NO: NICN/ABJ/196/2020
BETWEEN:
1. CITIZENS ADVOCACY FOR SOCIAL &
ECONOMIC RIGHTS (CASER)
2. ASSOCIATION OF WOMEN IN TRADE &
AGRICULTURE (AWITA)---------------------CLAIMANTS/APPLICANTS
AND
1. NATIONAL ASSOCIATION OF RESIDENT DOCTORS
2. THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION
AND MINISTER OF JUSTICE
3. THE HONOURABLE MINISTER OF HEALTH
4.THE HONOURABLE MINISTER OF LABOUR
AND PRODUCTIVITY---------------------------------DEFENDANTS
Representation:
Frank Tietie for the Claimants/Applicants
No representation for the Defendants
Ruling.
This suit was commenced by an Originating summons filed on the 18th of June, 2020 and same is pending before Hon. Justice E.N. Agbakoba. Upon the commencement of the said suit, Claimants filed four separate motion ex-parte, two of which were moved and determined by my learned brother, Honourable Justice E.N. Agbakoba. The first was filed on the 23rd of June, 2020 wherein the Claimant/Applicant sought for the following reliefs:
1. An Interim Order of this honourable court prohibiting the 1st Respondent being a provider of essential services of health necessary to the fundamental right to life, from engaging in any further strike actions pending the hearing and determination of the motion on notice herein.
2. And for such further or other Orders as this Honourable Court may deem fit to make in this circumstance.
The court heard the said motion ex-parte but did not grant the reliefs as prayed. Rather, as can be gathered from the Enrolled Order signed by Honourable Justice E.N. Agbakoba and dated the 30th of June, 2020, the Court Ordered thus:
“I am fully aware of the weighty issue the Applicants’ Counsel has raised as to public interest and I am not unmindful of this(sic) historical perspective narrated in the open court. However, the applicant in making this application has raised certain jurisdictional questions which I feel that (sic) require that the Respondents be heard, particularly the issues of locus and public interest.
The Respondents are to be put on notice”
The matter was subsequently adjourned to the 30th of June, 2020 for hearing of the motion on notice. It was on the said adjourned date that the Claimants/Applicant filed the second motion ex-parte which was for substituted service on the 1st Defendant. The said motion ex-parte was heard on the same date of filing and the relief sought for was granted. Consequently, the matter was adjourned to the 9th of July, 2020 for report of service.
Consequent upon the order for substituted service, the 1st Defendant was served and has now joined issues with the Claimants/Applicants by filing processes in response to the originating summons initiated by the Claimants/Applicants.The court adjourned the matter to the 8th of October, 2020 for hearing of pending motions along with the substantive suit
The foregoing analysisreveals the status of this suit before Hon. Justice E.N. Agbakoba before the Claimants/Applicantsfiled another motion ex-parte on the 14th of August, 2020 brought pursuant to Order 3 Rule 2,Order 17 and Order 22 of the National Industrial Court (Civil Procedure) Rules 2017; sections 33, 46 and 254C(1)of the Constitution of Federal Republic of Nigeria 1999 (as amended).
The said Motion Ex-parte is seeking for the following reliefs:
1. An Interim Order of this honourable court prohibiting the 1st Respondent/Defendant from threatening, taking steps or engage in any further strike actions and to maintain the status quo ante bellum pending the hearing and determination of the motion on notice herein.
2. An Interim Order of this honourable court directing the 1st Respondent/Defendant to cease any further strike actions pending the hearing and determination of the motion on notice herein.
3. And for such further or other Orders as this Honourable Court may deem fit to make in this circumstance.
The motion ex-parte is accompanied by a 26 paragraphed affidavit deposed to by Tyoutsa Gaavyima, with 6 exhibits and a written address. I reckon that the Claimants/Applicants also filed a 15 paragraphed affidavit of urgency deposed to by the same Tyoutsa Gaavyima.
Sequel to the antecedents of the instant suit before my learned brother Judge, the fact arising from the affidavits in support of the instant motion ex-parte is that despite acknowledging the fact that the instant suit is adjourned to the 8th of October, 2020, after the suspension of the initial strike on the 20th of June, 2020, the 1st Defendant again on the 25th of July, 2020 threatened to embark on another strike action to demand the payment of covid-19 hazard allowance, provision of personal protective equipment, inclusion of the Medical Residency Training Fund in the 2020 budget and salary shortfall of 2014 -2016. The deponent added that the services of the 1st Defendant is critical on a minute by minute basis to the life and wellbeing of Nigerians particularly the 2nd Claimants.
Upon a careful consideration of the foregoing, particularly the antecedent of the suit before my learned brother Judge and the argument of counsel to the Claimants/Applicant while moving the instant motion ex-parte, I must state that the question before this court is whether or not a grant of an order ex-parte is competent in the circumstance of this case.
In addressing the said question, I must foremost bring to the bare the position of the law with regards to the conditions for the grant of ex-parte orders which has for long been settled by the Supreme Court in case of Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419.
In more recent time, the said conditions were reiterated by the Courtin the case of League Management Company Limited & Anor v Mutapha Abubakar & Anor. (2017) LPELR-43426 (CA) where the Court of Appeal held that:
“The main attributes of an ex-parte application for injunctive orders include that (i) it Can be made when there is a real urgency but not a self-induced or self-imposed Urgency; (ii) it cannot be granted pending the determination of the substantive action; (iii) it can be granted where the Court considered on a prima facie view that an otherwise irreparable damage may be done to the applicant before the application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party; (iv) although, it is made without notice to the other party, there must be a real impossibility of bringing the application for such injunction on notice and serving the other party, (v) the applicant must not be guilty of delay”- Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, Oniah Vs Onyia (1989) 1 NWLR (99) 514, Igbinoba Vs Igbinoba (2003) 2 NWLR (Pt 803) 39, Central Bank of Nigeria Vs System Application Products Nigeria Ltd (2005) 3 NWLR (pt 911) 152. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
On the strength of the foregoing authority, I take into cognizance the fact that the 1st Defendant in this case has already entered appearance in this suit and can be conveniently served any process and thereby be put on notice of the reliefs sought by the Claimants/Applicants. The consequence of the finding is that there is no real impossibility of bringing the instant application on notice and that makes the instant application for an ex-parte order to be in violation of the 4th condition stated by the Court in League Management Company Limited & Anor v Mutapha Abubakar & Anor. (supra).
Notwithstanding the foregoing, I have taken due consideration of the facts upon which the instant application is made and find that while the deponent posited that the 1st Defendant have threatened to embark on strike, I reckon that there is no specific date mentioned by the Claimants/Applicants upon which the strike is to commence which would bring about an imminence of urgency to warrant the grant of an ex-parte order.
In addition, I have evaluated Exhibit ‘F’ which is the vanguard news print-out, annexed as to the affidavit of urgency and which is the fulcrum of this application. Upon evaluation, I find that the report titled ‘Resident Doctors Threaten to Strike Over Covid-19 Allowance, PPE and Others’ was reported on the 31st of May, 2020. A date that precedes the instant suit which is filed on the 18th of June, 2020. The content of the Report also does not make mention of any specific date when the Resident doctors are to embark on the said strike.
Consequently, there is no fulfillment of the most important condition for the grant of an ex-parte order which is that there must be real urgency. See the case of Itama v. Osaro-Lai (2000) 1 NWLR (Pt.661)515.
In the light of all the foregoing, the sole issue for the determination of the instant application is resolved against the Claimants/Applicant to the effect that the grant of an order ex-parte is incompetent in the circumstance of this case.
In the final analysis, the reliefs sought by the Claimants/Applicants in the instant motion ex-parte is unmeritorious and they are accordingly refused.
Ruling is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.