IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE EMMANUEL DANJUMA SUBILIM

 

DATE: 16TH MAY, 2024                                                SUITNO: NICN/ABJ/95/2024

 

BETWEEN:

 

JATAU RAYMOND YOHANNA                       ……….            APPLICANT

AND

1.     CONTROLLER GENERAL OF NIGERIA CORRECTIONAL SERVICES

2.     IMMIGRATION AND PRISON SERVICES BOARD …………. RESPONDENTS

 

REPRESENTATION:

Dr. M.Y Suleiman Esq. with H.O Oyaje Esq., N.Z Ja’afaru Esq., for the Claimant/Applicant

Zakari Abdulhamid Esq. for the Defendants/Respondents

RULING

INTRODUCTION

1.     Learned counsel to the Claimant/Applicant initially filed a Motion Ex Parte praying for an interim injunction under Order 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. The Motion Ex Parte was dated and filed on 5th April 2024 and was moved on 18th April 2024. Upon hearing of the Motion Ex Parte, the court refused the reliefs sought Ex Parte and ordered that the Defendants be put on notice so that the application would be heard on the merit.

2.     Counsel to the Claimant/Applicant, pursuant to the order of court, therefore caused a Motion on Notice dated 5th April, 2024 to be served on the Defendants/Respondents under Order 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of this Court, seeking the following reliefs:

a.     An order restraining the Respondents, from taking any step towards retiring the applicant during the pendency of the substantive suit pending before this Court or;

b.     An order of the Hon. Court compelling the parties to this suit to maintain the status quo pending the determination of the substantive matter pending before this Court.

c.      Any other and/or further order the Court may deem it fit in the circumstances of this case.

3.     The Motion on Notice is supported by an affidavit deposed to by Jatau Raymond Yohanna, the Claimant/Applicant in this suit with exhibits, and a written address dated and filed on the 5th of April 2024. The Defendants/Respondents on the other hand, after being served with Claimant/Applicant’s processes did not enter appearance even on protest nor file any process in opposition to the Claimant/Applicant Motion on Notice in line with provisions of Order 17 Rules 10 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

SUBMISSIONS OF APPLICANT’S COUNSEL

4.     The Learned Counsel to the Claimant/Applicant submitted a lone issue for determination:

a.      Whether by the brief facts and circumstances of this case the applicant merits the exercise of the discretionary power of the Court in the circumstances of this application.

5.     Counsel began his argument by stating that the applicant has met the conditions for the grant of this application by virtue of Annexure ‘A’, ‘A1’ referred to in paragraph 2 of his supporting affidavit that he is an employee of the Respondents and that his public service record of service is being threatened by the respondents by virtue of (Annexure ‘G’, ‘H’, ‘I’ and ‘J’) referred to in paragraphs 8, 9, 10 and 13 of his supporting affidavits.

6.     Learned Counsel argued that it is trite that an injunction is an equitable and discretionary remedy at the disposal of the Court for grant in deserving cases. As in the instant case of the Applicant, the application is necessary for the fear that the Applicant could be retired prematurely and unlawfully in 65 days from 5/4/2024. Counsel submitted that the applicant’s case appeals for quia-timet injunction to restrain the respondents from carrying out their threats that the main suit seeks to challenge. Counsel added that the guiding principle for the grant of an application such as this is that the acts sought to be restrained have not been completed. Counsel cited the case of ANGADI V. PDP [2019] ALL FWLR (PT. 996) 939 at 973, to buttress his point.

7.     Counsel went further, in his argument, that the actions such as those of the respondents against the applicant are actions that have already been initiated and is in progress. Counsel submitted that it will best serve the interest of justice if the respondents are restrained by an injunction by this court. Counsel submitted further that in the case of IDEOZU V. OCHOMA [2006] NSCQR 451 at 469-470 the apex Court, per Oguntade JSC held that ‘the principle is that the court will not make an order of restraint of an act, which has been completed and the court will not make an order of injunction if that will have the effect of altering the status quo’.  Counsel added that in the case at hand, the applicant disclosed in his supporting affidavit the urgency with which the respondents want to unlawfully sent him on premature mandatory retirement. Learned Counsel finally submitted that the circumstances of this case weigh more in favor of the grant of this application to preserve status quo as the applicant intend to demonstrate that he will attain thirty-five years in service in the year 2031 and the age of sixty in the year 2033 which are the years of his mandatory retirement from the public service.

 

DECISION

8.     I have carefully gone through the reliefs on the Motion paper filed by the Applicant, the affidavit and the written address attached thereto. The Applicant’s application is for an order of injunction restraining the respondents from retiring him unlawfully and prematurely.

9.     The power of this Court to grant an interlocutory injunction such as in this instant case, is provided for by S. 16 of the National Industrial Court Act, 2006 and Order 22 Rules 1 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

10.           Interlocutory injunction is a type of temporal remedy usually given by a Court for the preservation of the sanctity of the judicial process and the protection of legal or equitable right(s) if any from any form of injury or damage that may be irreparable or irreplaceable pending the determination of the substantive suit. The core of an Interlocutory injunction is the preservation of res, to prevent in any possible way any irreparable injury to the applicant’s legal or equitable right(s). See KOTOYE V. CBN (1989) 1 NWLR (PT. 98) @419; ADENUGA V. ODUMERU (2001) 2 NWLR (PT.696) 184; OKOMU OIL PALM CO. V. TAJUDEEN (2016) 3 NWLR (PT. 1499) 284 AT 296.

11.           Interlocutory injunction is concerned principally with the protection of the res and maintaining the status quo. It is only where the subject matter will be completely destroyed and cannot be recovered or replaced or be completely distorted or defaced that an order of interlocutory injunction will be appropriate to maintain the status quo until the final determination of the substantive suit. See UDO V. INCORPORATED TRUSTEES CHRISTIAN METHODIST EPISCOPAL CHURCH (2010) ALLFWLR PART 507 PAGE 88.

12.            It must also be understood that an "injunction is a Court Order commanding or preventing an action. Therefore, any party applying for an injunction "must show that there is no plain, adequate and complete remedy at law and that an irreparable damage will result unless the relief is granted.” See BLACK'S LAW DICTIONARY, 9TH ED. In a general sense, every order of a Court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is also seen as a judicial process or mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. See MBAJI V. AMOBI (2011) LPELR-3988(CA) (PP. 22-23 PARAS. G).

13.            It follows, therefore, that interlocutory injunction is to regulate the position of the parties pending the trial and determination of the issue between them, while avoiding a decision on such issues, which could only be resolved at the trial. The purpose of interlocutory injunction is usually seen as to protect the Claimant/Applicant against injury of violation of his right for which he could not be adequately compensated in damages, recoverable in an action, if the case was resolved in his favour at the trial.

14.            I am mindful that the right of the Claimant/Applicant to be protected has to be weighed against the corresponding need of the Defendants/Respondents to be also protected against injury having been prevented from exercising their own statutory duty if the uncertainty were resolved in their favour at the trial. See BRAITHWAITE VS SCB (NIG) LTD (2012) 1 NWLR (PART 1281) PAGE 301; OBEYA MEMORIAL SPECIALIST HOSPITAL VS AG FEDERATION (1987) 3 NWLR (PART 60) 325; OJUKWU VS MIL GOV LAGOS STATE (1986) 3 NWLR (PART 26) PAGE 39.

15.            It is also common place that an Interlocutory Injunction, otherwise known as Preliminary or Temporary Injunction, is usually issued only after the Defendant is confirmed to have had notice and an opportunity to be heard, just as what is obtainable in this case. See ADELEKE VS LAWAL (2014) 3 NWLR (PART 1393) PAGE 1; GLOBE FISHING INDUSTRIES LTD VS COKER (1990) 7 NWLR (PART 162) PAGE 265.  See UNION HOMES SAVINGS & LOANS PLC V. CHIZEA (Pp. 25-27 paras. F).

16.           In the instant case, the event described in paragraphs 16 and 25 of Applicant’s affidavit is what is sought to be restrained. According to the Applicant the respondents have listed Claimant for mandatory retirement in June of this year and have already released a Circular “Annexure G” to that effect. The said mandatory retirement according to the applicant is unlawful and premature. This is what he wants this court to restrain the Respondents from doing pending the determination of this suit.

17.           We must point out at this juncture that the respondents are both entities created by an Act of Parliament. According to paragraph 2 of the Applicant’s affidavit, Applicant is a serving officer of the Nigerian Correctional Service, employed in 1998 and his appointment duly gazetted. See Annexure ‘A’ and ‘A1’. It is therefore clear that the relationship between the Applicant and the Respondent is that which is governed by statute and not a Master/Servant relationship. The Respondents did not file any process to counter these depositions.

18.           The Applicant therefore seeks this injunction on the consideration that the act of the respondents if carried out will be prejudicial to him. Applicant further argued that since the act is one that is in the process of being carried out, the Court has the inherent power to restrain the respondents from carrying out the very act of unlawful premature retirement.

19.           Courts, overtime has laid down precedents that serves as a guide to be considered for the grant of this equitable relief of interlocutory injunction. Among other considerations, it is no gain saying that for Applicant to succeed in an application for interlocutory injunction, there must be a subsisting action which must clearly donate a legal right to the Applicant. And from the processes filed before this Court, the claim of the Applicant seeking for an order of this Court preventing the respondents from retiring him prematurely, settles the fact that there is a legal right in issue that is sought to be determined. The requirement that the applicant must have a serious question to be tried: i.e., that the applicant has a real possibility not probability of success at the trial is one that postulate whether based on the processes before the court, prima facie or a triable issue has been made out. In the light of the earlier conclusion above, there is no doubt that the Applicant has made out a triable issue before this court.

20.            There is also this mooted idea that for a grant of an injunction, the applicant is also expected to show that the balance of convenience is on his side and damages cannot adequately compensate the injury to be suffered. Again, the court processes before this court glaringly show that the relationship between Applicant and respondent is one that is clothed with statutory flavour. And it follows that the statutes that establish Respondents also regulates the employment relationship between the Applicant and the Respondents. It is the Applicant’s contention that the respondents want to retire him from service without recourse to the said Rules and Regulations. And this court have been admonished severally to always be wary of interfering with the internal workings of any institution or organization save where there is a miscarriage of justice. See SHELL PET. DEV. CO V. NWAKA (2001) 10 NWLR (PT. 720) 64.

21.            At this stage of the proceeding, I am careful not to delve into the substantive issues in this suit. However, the question still remains: whether the injury or damage threatened to be inflicted on the Applicant if remedied by the substantive suit will be irreparable or irreplaceable and or any resolution of this court if it favour the Applicant will be a little too late. The Applicant is demanding that he should not be retired from his employment prematurely and unlawfully. However, I am of the opinion that Applicant has not sufficiently (in the light of the law relating to employment with statutory flavor) satisfied this Court that the balance of convenience will be in his favor or that he will suffer any irreparable or irreplaceable damage(s) or injury in the event that the respondents carry out the said act of retiring him or that even if the substantive suit is decided in his favor, it will be a little too late.  

22.            It therefore follows that the reliefs of the Applicant directing and mandating all parties to maintain the status quo ante bellum as at when this Suit was instituted by the Applicant pending the determination of this suit under these circumstances cannot be sustained in the eyes of the law. See BRAITHWAITE VS SCB (NIG) LTD (2012) 1 NWLR (PART 1281) PAGE 301. This I so hold.

23.            However, after going through the processes before this court I am of the view that this is a case that calls for an “order for early trial” under Order 22 Rules 4 of the Rules of this court.  Accordingly, I do hereby make an order that this case shall be heard on a day-to-day basis to accelerate the determination of the substantive suit as provided under Order 38 Rules 7(1) or in the alternative parties can proceed by “trial on record” as provided under Order 38 Rules 33 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 upon the fulfilment of the conditions stipulated therein. This I so hold.

24.           Ruling is hereby entered accordingly. I make no order as to cost.

 

 

 …………………………………………………………………

  HON. JUSTICE EMMANUEL DANJUMA SUBILIM

JUDGE