IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO
DATED: 10THMARCH, 2020 SUIT N0 NICN/ABJ/182/2016
1. The Incorporated Trustees of the Association
of Medical Laboratory Scientists of Nigeria
2. The Incorporated Trustees of the Association
of Medical Laboratiry Scientist of Nigeria, Irua
Specialist Teaching Hospital Chapter, Irua, Edo State.
3. Obarhua Ejiroghene (Chairman, Association of
Medical Laboratory Scientists of Nigeria, Irua
Specialist Teaching Hospital Chapter, Irua, Edo State).
4. Alibi Precious (Secretary, Association of Medical
Laboratory Scientists of Nigeria, Irua Specialist
Teaching Hospital Chapter, Irua, Edo State).
1. Irua Specialist Teaching Hospital, Irua, Edo State
2. Board of Management, Irua Specialist
Teaching Hospital, Irua, Edo State
Dr. Syllabus A. Okogbenin (Chief Medical Director
Irua Specialist Teaching Hospital, Irua, Edo State
4. Mr. Tony Edekpo (Director of Administration,
Irua Specialist Teaching Hospital, Irua, Edo State
5. Dr. Ehioze Matthew (H.O.D. Haemathology)
6. Dr. Kingsley Osuji (H.O.D. Chemical Pathology)
7. Dr. G.M. Adewuyi (H.O.D. MicroBiology Department
Prof. A.O.O Ekpufor theDefendant / Judgment Debtors/Applicants
C.N. Dike for the Claimant/Judgment Creditors/Respondents
1. This is a post-judgment application filed by the Defendant/Judgment debtors/Applicants on 17th October, 2019, praying this court for the following orders:
a) AN ORDER restraining the claimants/respondents whether by themselves, their servants, agents, officers and/or representatives, acting under the guise of implementing the judgment of this Honourable Court delivered on 28/1/2019, from interfering with, obstructing or harassing, in any manner whatsoever, the applicants in the performance of their duties as employees of Irua Specialist Teaching Hospital pending the determination of the appeal filed by the Applicants Herein at the Court of Appeal.
b) Further order or orders as this Court may deem fit to make in the circumstances.
2. In support of the application the Applicants filed a 22 paragraph affidavit, deposed to by the 6thApplicant and attached two documents marked Exhibits A&B.Also filedin compliance with the rules of this Court is a written address dated 3rd July, 2019.
3. The Claimants/Judgment Creditors/Respondents in response, filed an18 paragraph counter-affidavit deposed to by Esezobor Laurenta, legal practitioner of Ibomhen Dike& Co. solicitors, on 18thJuly, 2019 and attached a written address therein dated 16thJuly, 2019.
4. The two parties adopted their written submissions in the application on the 3rd of February, 2020, and same was adjourned for Ruling.
5. In his written address in support of the application, Prof. A.O.O Ekpu on behalf of the Applicants, submitted one issue for determination, to wit:
Whether the Applicants have placed sufficient materials before this court to warrant a grant of the application.
6. Learned counsel submitted that although the grant or refusal of this application is totally at the court’s discretion, which must be exercised judicially and judiciously, the Applicants have placed sufficient materials before the court to warrant a grant of their application. He cited Tochukwu v F.R.N (2005) ALL FWLR (Pt. 278) CA 1084, and argued that the fundamental condition for a grant of injunction pending appeal is that the applicant show special/exceptional circumstance to warrant the grant of the application. He relied on Josien Ltd. v Lornamead Ltd. (1995) 26 LRCN 1 at 12and paragraph 7-17 of the affidavit in support of the application and argued that the deposed factshave established a special circumstance. He further argued that the Applicants have shown their intention to appeal the decision of this court by filing an application for leave to appeal, at the Court of Appeal and posited that an application for leave to appeal in this instance will qualify as an Appeal, citing Ngere v Okuruket (2014) ALL FWLR (Pt. 742) 1766 at 1781, Para. A.
7. Learned counsel added that the Applicants having undertaken to pay damages, have shown that the balance of convenience and the justice of this application are in support of a grant of same.
8. C.N Dike, of counsel for the Judgment Creditor/ Respondents, also adopted his written address and relied on the issue formulated by the Applicants. He submitted that an application for injunction pending appeal is only applied by a claimant who has lost at the trial court, therefore the procedure adopted by the Applicants is inappropriate and this robs the court of the jurisdiction to entertain same. He cited Sodeinde v Registered Trustees of Ahmadiyya Movement (1980) 1-2 SC 163 and submitted that the Applicants have not established any special circumstance to warrant a grant of an injunction, heconcluded by urging the court to dismiss the application.
9. I have read all the processes filed in this application and the submissions of both counsel, and have thereafter formulated one issue that will best determine this application, to wit:
Whether or not the Applicants are entitled to a grant of injunction pending appeal.
10. The guiding principle for a grant or refusal of an injunction pending appeal was enumerated by Nweze JCA in National Pension Commission v Chief Orlando Ojo & Ors. (2013) LPELR-20826(CA) where his lordship held that:
“ … for a court to declare whether or not to grant an injunction pending appeal, it has, as of legal necessity to go into consideration of the competing legal rights of the parties to the protection of the injunctive relief. It is a duty placed on an applicant seeking injunction pending appeal to establish by evidence in affidavit(s) the legal right he seeks to protect by the order which of necessity makes it mandatory for the court to go into the facts to determine whether such entitlement has been established.”
11. It therefore falls on the Applicants in the instant application to prove their entitlement to the order sought in this application. The Applicants deposed that the Respondents and their members in the 1st Applicant, has purportedly established a department of Medical Laboratory Services which is against the established order of affairs in the 1st respondent and these acts have created an impasse in the hospital. The Respondents on their own part contended that the department has always been in existence andone Mr. Lawrence F. Dada, who the Applicants are trying to remove has always been the head of that department. They also contended that it is the Applicants who have been trying to frustrate and intimidate the members of the 2nd respondent. There is no doubt that the judgment of this court in this suit is to the effect that the respondents’members herein are entitled to the benefits of the judgment in Suit N0: NICN/ABJ/128/2012 and suit N0: NICN/ABJ/284/2014 which is a declaratory Judgment. However, this court is precluded from retrying this suit or sitting on appeal on its own Judgment, I will therefore restrict myself to the application before me in the circumstances.
12.The conditions for grant of injunction pending appeal was listed by Peter Odili JCAin Ozigbo & Ors v PDP & Ors. (2009) LPELR-4922(CA) as follows:
a) There must be a competent appeal which the motion for injunction is predicated upon,
b) The grounds of appeal must raise substantial issues in an area of law that is recondie
c) The existence of special circumstances that justify its grant , and
d) It must be right to put matters in status quo that it will be equitable to maintain the status-quo or preserve the res so as not to render the appeal nugatory.
13. It is the position of the law that that a notice of appeal does not qualify as a valid/competent appeal and an Appeal is deemed to be valid when the records of appeal has been compiled and transmitted, and enteredin the Court of Appeal, see Stanbic IBTC Plc v Long Term Global Capital Limited & Ors (2016) LPELR-40517(CA) where Abubakar JCA held thus:
14. “… the law is settled that giving Notice of Appeal is not sufficient to consider the appeal as having been entered, an appeal is deemed to be properly entered when the records of appeal are compiled and transferred to the Court of Appeal by the Registrar.”
15. This position is further confirmed the Supreme Court inSPDC Nigeria Limited V. Amadi & Ors. (2011) LPELR-3204(SC)where Musdapher JSC held thus :
“…An appeal is said to be entered when all the records of appeal is transmitted to the Supreme Court and the matter is entered in the cause list.”
16. This position outlined above aligns with the provision of Order 64 Rule 8 of the National Industrial Court (Civil Procedure) Rules 2017.The Applicants in this application cited the holding of Rhodes-Vivour JSC in Ngere & Anor v Okuruket & Ors (2014) LPELR-22883 (SC) where he held as follows;“an application for leave to appeal is an appeal”. I have read the above authority and discovered that the holding ofhis lordship in that case is in relation to an application for extension of time seeking leave to appeal,9 years after the judgment of the court of Appeal in that case. The Appellant in that case decided to file an application for leave to Appeal out of time at the Supreme Courtin first instance and that was what the Supreme Court decided on,the decided casehas nothing to do with the fulfillment of the conditions of Appeal. I find therefore, that the authority cited is inappropriate in the circumstances of this application. I so hold.
17.Furthermore, there is no evidence of a valid/competent appeal before this court other than anapplication for leave to appealas shown inExhibit A attached to the affidavit in support of this application. It is also evident that there no leave to appeal was exhibited, and in the least there is no evidence before me that a date has been fixed for the application for leave to appeal, which as a matter of record was filed by the Applicants’ since 17th April, 2019. In other words the application for leave is as yet to be fixed for hearing, heard or granted by the court of Appeal. The implication of this is there is no valid Appeal as of date, upon which this application can be premised.
18. It is therefore obvious that the conditions of Appeal in this case are yet to be fulfilled and it is consequent upon the above reasoning that I hold that this application lacks merit and same is hereby refused.
Ruling is accordingly entered
I make no order as to cost
Hon Justice A.A. Adewemimo