IN THE NATIONAL INDUSTRAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATE: 18TH MAY, 2020 SUITNO: NICN/ABJ/270M/2019
1. INCORPORATED TRUSTEES OF ASSOCIATION OF MEDICAL
LABORATORY SCIENTISTS OF NIGERIA (AMLSN)
2. JOHNSON SAMUEL ONNOLOME
(CHAIRMAN, ASSOCIATION OF MEDICAL
LABORATORY SCIENTISTS OF NIGERIA, OLABISI
ONABANJO UNIVERSITY TEACHING HOSPITAL CLAIMANTS/RESPONDENTS
(OOUTH), SAGAMU CHAPTER, OGUN STATE
3. ADEBAYO SALMON ADETOKUNBO
(SECRETARY, ASSOCIATION OF MEDICAL LABORATORY
SCIENTISTS OF NIGERIA, OLABISI ONABANJO UNIVERSI
TEACHING HOSPITAL (OOUTH),
SAGAMU CHAPTER, OGUN STATE.
1. HONOURABLE ATTORNEY GENERAL AND
COMMISSIONER FOR JUSTICE, MINISTRY OF
JUSTICE, ABEOKUTA, OGUN STATE
2. HONOURABLE COMMISSIONER FOR HEALTH,
MINISTRY OF HEALTH, ABEOKUTA, OGUN STATE
3. BOARD OF MANAGEMENT, OLABISI ONABANJO
UNIVERISTY TEACHING HOSPITAL,
SAGAMU, OGUN STATE.
4. PROFESSOR ALFRED E.A. .JAIYESIMI (CHIEF
MEDICAL DIRECTOR, OLABISI ONABANJO
UNIVERSITY TEACHING HOSPITAL (OOUTH),
SAGAMU, OGUN STATE)
5. DR. P.O. ADEFUYE DEFENDANTS/APPLICANTS
(ACTING CHAIRMAN, MEDICAL ADVISORY
COMMITTEE (CMAC) OOUTH, SAGAMU, OGUN STATE)
6. PROFESSOR P.O. OLATUNJI (HOD, HAEMOTOLOGY/
BLOOD TRANSFUSION DEPARTMENT) QOUTH,
SAGAMU, OGUN STATE
7. DR. OLATUNBOSUN O. OLAWALE
(HOD, DEPARTMENT OF CHEMICAL
PATHOLOGY AND IMMUNOLOGY, OLABISI
ONABANJO UNIVERSITY TEACHING HOSPITAL
(OOUTH), SAGAMU OGUN STATE)
8. MR. A.O. OTUNUGA
(DIRECTOR OF ADMINISTRATION AND SECRETARY
TO THE BOARD, OLABISI ONABANJO UNIVERSITY
TEACHING HOSPITAL (OOUTH), SAGAMU OGUN STATE)
K. O. IJATUYI for the Claimant/Respondents
A. D. ADEFALA, Senior State Counsel, for the Defendant/Applicants
1. The Defendants/Applicants filed a MOTION ON NOTICE on 16th September, 2019 supported by a 5 paragraph affidavit deposed to by Dr. Peter Adefuye seeking the following prayers:
1. AN ORDER directing a Stay of Execution of the Judgment of the National Industrial Court sitting at Abuja in Suit No. NICN/ABJ/332/2016 — Incorporated Trustees of Association of Medical Laboratory Scientists of Nigeria (AMLSN) and 2 ORS v Honourable Attorney General and Commissioner for Justice Ogun State and 7 ORS delivered on Friday 26th January, 2018 pending the Hearing and Determination of the Appeal lodged against it on 26th March, 2018.
2. AN ORDER imposing an Injunction upon all the Claimants/Respondents (Parties) restraining the carrying into effect by howsoever means the Judgment of the National industrial Court sitting at Abuja Abuja in Suit No. NICN/ABJ/332/2016 — Incorporated Trustees of Association of Medical Laboratory Scientists of Nigeria (AMLSN) and 2 ORS v Honourable Attorney General and Commissioner for Justice Ogun State and 7 ORS delivered on Friday 26th January, 2018 pending the Hearing and Determination of the Appeal lodged against it 2th March, 2018.
DEFENDANTS/APPLICANTS ADDRESS IN SUPPORT OF MOTION ON NOTICE
Whether this Honourable Court ought to allow the Application in the entire circumstance presented.
2. Learned Counsel for the Defendant Applicants cited the following cases as the principles of law involved in resolving any Application for Stay of Execution or Injunction Pending Appeal in respect of Court decisions. Onyesoh V Nnebedum (1992) 3 NWLR (Part 229) 317; Onuzulike V Commissioner for Special Duties Anambra State & Anor (1990) 7 NWLR (Part 161) 252;
Obeya Memorial Specialist Hospital & Anor. V Attorney General, Federation (1987) 3 NWLR (Part 60) 25. Firstly, counsel submitted that the Honourable Court will readily allow an application of this kind where the Appeal is predicated on recondite points as stated in Balogun V Balogun (1969) 1 All NLR 349 and they are very substantial as stated by the Court in Utigas V Pan African Bank Limited (1974) 1 All NLR (Part 2) 47,49 to the effect that there are substantial legal issues to be determined, it is right to put matters in status quo, and that it will be equitable to maintain status quo or preserve the res if the appeal is to have any meaning as clearly demonstrated by Exhibits MOJ 1 and MOJ 2.
3. It is counsel’s submission that the Court from which an appeal lies and the Court to which an appeal lies has the duty to preserve the res in order to ensure that the appeal, if successful, is not rendered nugatory and does not make the entire effort of the appellant and the Court end in vain. Vaswani Trading Company V Savalakh & Company (1972) 12 S.C. 77, 81-82. He submitted that it is settled that where grounds exist on the motion, suggesting a substantial issue of law as to some extant recondite and either party may have, judgment in his favour, stay of execution must be granted. Atayi Farms Limited V Nigerian Agricultural Commercial Bank Limited (2003) 4 NWLR (Part 810) 427.
4. Learned Counsel for the Defendant Applicants also posited that once the grounds of appeal raise substantial triable issues, the Court will take cognizance of the grounds of appeal and the totality of the affidavit evidence. In support of the application in its consideration as to whether or not to grant a stay of execution of the judgment. Shell Petroleum Development Company of Nigeria Limited V Okei (2006) 17 NWLR (Part 1007) 1, 20-21. He further submitted that the appeal has a good chance of success having regards to the grounds of appeal contained in the Notice of Appeal. Ndaba (Nigeria) Limited V Union Bank of Nigeria Plc (2007) 9 NWLR (Part 1040) 439 and that it will therefore be in the interest of justice to allow this application.
5. The Claimants/Respondents filed a 17 paragraph COUNTER AFFIDAVIT TO THE MOTION FOR STAY OF EXECUTION OF THE JUDGMENT DELIVERED ON 26TH JANUARY, 2018 (on 28th January, 2020) and deposed to by Ajayi Adetiloye Victor.
WRITTEN ADDRESS IN RESPONSE TO THE MOTION FOR STAY OF EXECUTION OF THE JUDGMENT DELIVERED ON 26TH JANUARY 2018.
1. Whether this application is competent before this Honourable Court in view of Appeal No: CA/A/501/2018, now pending at the Court of Appeal, Abuja?
2. Whether having regard to the provisions of Order 64 Rules 8,9 and 10 of this Court, the Defendants/Applicants have shown sufficient grounds that will enable the Honourable Court to grant a Stay of Execution pending appeal?
3. Whether an Appeal can operate as a stay against a Declaratory Judgment
ON ISSUE 1
Whether this application is competent before this Honourable Court in view of Appeal No: CA/A/501/2018, now pending at the Court of Appeal, Abuja?
6. It is Learned Counsel to the Claimant Respondent’s submission that having regard to Exhibits MOJ 1 and MOJ 2 attached by the Applicants in this application and Exhibit “A” attached by the Respondents, this Motion on Notice is not competent before this Honourable Court. In other words, that this application ought to have been filed in the Court of Appeal, Abuja, where the appeal against the judgment of this Court is now pending. This Court, as far as Suit No: NICN/ABJ/332/2016, Is functus officio and cannot sit on appeal In his own judgment. Furthermore, that the Honourable Court Cannot take cognizance of the facts deposed to In paragraph 4 (I), (ii), (iii), (iv), and (v) of the affidavit In support of this application as they are issues for consideration by the Court of Appeal, where the matter is now pending. Muhammad v. Hussein (1998) 14 N.W.L.R (Pt.584) 108 at 163; Okafor v. A.G. Anambra State (1991) 6 N.W.L.R. (Pt.200) 659; lkpong v. Udobong (2002) 2 N.W.L.R (Pt.1017) 184 at 206; Kashamu v. A.G. FRN (2013) LPELR-22357 CA; Anyaegbunam v. A.G. Anambra State (2001) 6 N.W.L.R (Pt. 710) 532.
ON ISSUE 2
Whether having regard to the provisions of Order 64 Rules 8,9 and 10 of this Court, the Defendants/Applicants have shown sufficient grounds that will enable the Honourable Court to grant a Stay of Execution pending appeal?
7. It is Claimant Respondent’s Counsel’s submission that a careful reading of the provisions of Order 64 Rules 8,9 and 10 of the NICN Civil Procedure Rules, 2017, together with Exhibit “A” will unambiguously show that the Applicants did not adduce sufficient grounds in support of this application. Counsel further argued that the Applicants concealed vital facts from the court in this Instance and that Exhibit “A” is a pending Motion on Notice plus an Affidavit filed by the Applicants in the Court of Appeal.
ON ISSUE 3
Whether an Appeal can operate as a stay against a Declaratory Judgment?
8. Claimant Respondent’s Counsel submitted that declaratory judgments are orders which declare the rights of the parties; and as it were, such judgments cannot be stayed. Also, that a declaratory judgment cannot be enforced or executed and as such a stay cannot be granted. The MT Makhambet & Ors. V. The Incorporated Trustees of Indigenous Shipowners Association of Nigeria & Anor. (2011) LPELR-5021 (CA); Aje Printing (Nig) Ltd. V. Ekiti L.G.A. (2009) 7 NWLR (Pt. 1.14) 512; Yaro v. Arewa Construction Ltd. (1998) 7 NWLR (Pt 358) 368; Shell Petroleum Dev. V. Monday Amadi & Ors (2011.) 65CM 183; Odedeji v. Odedeji (2000) 1NSCQR 308; Olunloyo V. Adenlran (2001) 7 NSCQR 313; Momah v. A B Petroleum Inc. (2000) 1 NSCQR 348.
9. On the 5th March 2020 parties duly adopted and adumbrated their respective processes and this matter was adjourned for this ruling.
10. I have carefully summarized the position of all sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Defendant Applicants Motion on Notice.
11. The Defendant Applicants are seeking for stay of execution of the Judgement of this Court delivered 26th January 2018 pending their Appeal against the said judgement. The Defendant Applicant raised issues as recondite point of law, subsisting Appeal before the Court of Appeal and that the Appeal had a likelihood of success.
12. The Claimant Respondents on their own side raised the issue of competence arguing that from the Defendant Applicant’s annexures to their application for stay of an appeal had already been filed in the Court of Appeal that is still pending in the Court of Appeal and went on to argue that the Defendants ought to bring their application in the Court of Appeal also raising the question of the propriety of seeking a stay of a Declaratory judgement.
13. It is pertinent to point out that the Defendant Applicant did not file any response to the Claimant Respondent counter affidavit.
14. I am satisfied from the contentions of both parties that the res of this matter is no longer in this Court and is in fact firmly in the Court of Appeal. Homity of Courts require that the lower courts give credence to the Court above and in that wise I find that it is not in the furtherance of justice that this case or any part thereof should be pending before the National Industrial Court of Nigeria and the Court of Appeal at the same time. I find that in the circumstances the proper order to be made is for this Court to decline from taking any further action in this matter.
15. This is the Court’s ruling and it is hereby entered according.
HON. JUSTICE E. N. AGBAKOBA
PRESIDING JUDGE, ABUJA DIVISON
I. A. AWOLABI Principal State Counsel with A. O. ADEFAYE Senior State Counsel for the Ministry of Justice Ogun State for the Defendant Applicant.
K. I. IYATUNJI for the Claimant Respondent