IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN IN ENUGU
BEFORE HIS LORDSHIP HON .JUSTICE R.B.HAASTRUP
DATE: APRIL 02, 2014 SUIT NO. NICN/EN/69/2013
Mrs. Ekokwum Helen Chinedu - Claimant/Applicant
1. Mr. Michael Nwaide
2. Mr. Cyril Chukwudi
3. Nigerian Union of Local Government Employees
(NULGE) Delta State Branch.
4. Mr. Dave Ofoeyeno
President, Nigerian Union of Local Government Employees
(NULGE) Delta State Branch.
5. Apostle G. Wilson
Secretary, Nigerian Union of Local Government Employees
(NULGE) Delta State Branch.
6. Mr. Alex
Chairman, NULGE Elections Petitions and Appeals Committee,
Nigerian Union of Local Government Employees Delta State Branch.
C.U. Mmuozoba, Esq. for Claimant/Applicant
Emeka Eugene Aneke for 1st – 6th Defendants/Respondents.
The claimant in this suit has by a complaint dated and filed on 20th February, 2013 praying the Court for the following reliefs:
1. A declaration that the defendants have no powers or authority to swear- in the 1st defendant to the office of the 1st Vice-Chairman of NULGE, Aniocha South Local Government Council, Delta State, since no election was conducted for that position in NULGE.
2. A declaration that the purported swearing-in of the 1st defendant by the defendants to the office of the 1st Vice-Chairman of NULGE is invalid, null and void, ultra vires and of no effect whatsoever because there was no election for that office.
3. A declaration that the breach of the claimant’s fundamental rights by the defendants in the circumstances of this case is a reprehensible conduct.
4. A mandatory order directing the defendants to conduct an election between the claimant and the 1st defendant for the position of 1st Vice-Chairman of NULGE, Aniocha South Local Government Council, Delta State in which election the claimant shall be entitled to participate.
5. The sum of N1, 000,000.00 (One Million Naira) as exemplary damages against the defendants being and representing compensation for damages and breaches occasioned by the defendants to the claimant in the circumstances of this case.
6. The cost of this action as assessed by the court.
Accompanying the complaint are the verifying affidavit of claimant, statement of facts, list of documents/documents to be relied upon at trial (Exhibits 1-10), witness written deposition on oath and list of witness.
The defendants have neither entered an appearance nor filed any process regarding this suit. From the record of proceedings of this Court, and totality of sittings recorded before the ruling delivered today, the 2nd day of April, 2014, only one appearance was made by counsel for 1st & 2nd defendants while no appearance recorded for 3rd – 6th defendants, except for today, whereby Mr. Eugene appeared and announced appearance for all defendants in this suit; who were all duly served with the claimant’s processes and hearing notices for all scheduled court sittings.
The claimant has further filed a motion on notice, dated the 20th day of February, 2013 filed along with her complaint. The motion is supported by a 25 paragraphed affidavit deposed to by Mrs. Helen Chinedu, who is the claimant/applicant in this suit; of Aniocha Local Government Council of Delta State and a written address dated 20th February 2013,in support of the said motion.
The claimant has brought this motion pursuant to Order 11 (2) and (8), Order 14 (1) of the National Industrial Court Rules 2007, Section 36 and 42 of the 1999 Constitution and the inherent jurisdiction of this Court.
The claimant is by the said motion praying this Court for the following orders:
1. An order restraining the 1st defendant/respondent from parading himself as the 1st Vice-Chairman of the Nigerian Union of Local Government Employees (NULGE) Aniocha South Local Government Chapter, Delta State of Nigeria pending the determination of the substantive suit.
2. An order restraining the 2nd, 3rd, 4th, 5th, and 6th defendants/respondents, their Agents, Servants, Privies or any person acting on their behalf from recognizing or further recognizing, dealing with, presenting or in any manner whatsoever and howsoever parading the 1st defendant/respondent as the 1st Vice-Chairman of the Nigerian Union of Local Government Chapter, Delta State of Nigeria, pending the determination of the substantive suit.
3. Such further orders as the Honourable Court may deem fit to make in the circumstances.
On Thursday, the 26th September, 2013, leave was granted claimant to move her motion, dated 20th February, 2013, after several opportunities given to defendants to react to claimant’s motion or appear in court had proved abortive. The defendants were also not represented in court on that date. This Court did grant an adjournment at the instance of the defendants for the last time. The ruling on the said motion was however adjourned to the 28th November, 2013. On discovery by this Court that the defendants were not served with hearing notice of 26/09/2013, the date claimant’s motion was moved, the said ruling was then further adjourned in the overall interest of justice to the 14th January, 2014; this Court then consequently ordered that hearing notices should be issued and served on all defendants.
On 20/01/2014, the defendants were absent in Court. The Court on this date did set aside the proceeding of 26/09/2013, upon discovery by Court that defendants were not served with hearing notice when claimant’s motion was taken by the Court on that date. Hearing notice was again ordered to be served on all defendants, and matter was adjourned to the 27th January, 2014. Counsel for claimant again moved motion on that date and re-adopted its written address. Defendants and counsel were not present in court. The claimant’s counsel by the next adjourned date, 5/03/2014 urged this Court to foreclose the defendants, since no interest has been shown by them to defend this suit. Claimant’s prayer was granted and matter adjourned for today, 2nd April, 2014 for ruling on interlocutory application.
Now, regarding the claimant’s application filed before this Court. Two issues have been formulated for determination of this Court as follows:
1. Whether the claimant/applicant is entitled to the court’s order of interlocutory injunction against the defendants/respondents in the circumstances.
2. Is the balance of convenience in favour of the claimant/applicant or defendants/respondents?
In arguing issue no.1, counsel for claimant submitted that the claimant’s equitable right has been breached and is continuous in nature, the right to contest her desired post in NULGE 2012 elections, which has been breached in contravention of the NULGE Constitution and Sections 36 and 42 of the 1999 Constitution.
He proceeded further citing Obeya Memorial Hospital vs. A-G. Federation& Anor (1987) 3 NWLR (Pt. 60) 325; that the claimant is entitled to injunctive relief to stop further erosion of her rights; and that if this is refused, the tenure in question may lapse under the illegal occupation of the 1st defendant. In aid, learned counsel further referred to case of University Press Ltd vs. I.K.Martins Nig. Ltd (2000) 2 SCNJ 224, and submitted that there is substantial issue to be tried by this Court as established through supporting affidavit of the claimant/applicant’s motion.
On issue no. 2, counsel relying on the case of Leasing Company Nig. Ltd vs. Tiger Industries Ltd (2007) 14 NWLR (Pt. 1054) 346 at 374, Paras C-H, submitted that the continuous breach of the claimant’s fundamental right and denial of same clearly manifests that the balance of convenience is in favour of the claimant; that the claimant/applicant is entitled to the grant of interlocutory injunction in this case to prevent the defendants/respondents (especially the 1st defendant/respondent) from unlawful occupation of the term of office, being the subject matter of this suit.
I have carefully considered the application before me, submissions of claimant/applicant’s counsel and authorities cited. In summary, the claimant’s case is that her right to contest her desired post in NULGE 2012 elections has been breached in contravention of the NULGE Constitution and Sections 36 and 42 of the 1999 Constitution. This, the claimant contended cannot be adequately compensated in damages but by the grant of an interlocutory injunction.
This Court has taken the pains to meticulously peruse the averments in the claimant/applicant’s affidavit and the submissions made thereto. It is trite law that an interlocutory injunction is not granted as a matter of course, but may be granted in all cases in which it appears to the court to be just and convenient to do so. Also, an order of interlocutory injunction cannot serve as a remedy for an act that has been completed or carried out. See the cases of Ayorinde vs. A.G, Oyo State (1996) 3 NWLR (Pt.434) 20 SC; Ideozu vs. Ochoma (2006) 4 NWLR (Pt.970) 364 SC. The claimant/applicant by averments made in paragraph 21 of her affidavit in support of this application deposed to the facts that the defendants purportedly swore in the 1st defendant into office of the Vice-Chairman of NULGE, Aniocha South Local Government Council of Delta State. This cannot be better defined as an act that has been completed or carried out. Again, for an application for an interlocutory injunction to succeed, there are certain conditions which must be established as enunciated in the case of Kotoye vs. C.B.N.(1989) 1 NWLR (Pt.98) 419 SC.
The claimant/applicant in this case has not sufficiently disclosed to the Court the extent of damage she has suffered which could only be cured by the granting of this application. In view of the above reasons therefore, it is my considered and humble view that this matter is better handled by allowing accelerated hearing of the suit, so that the matter can be determined once and for all, and rights of parties decided finally. This is safer and proper for the court in order to avoid the temptation of having to touch on the substantive suit, which might give the impression that the court has made up its mind on the substantive issues on trial before it.
In conclusion, and in view of the reasons given above, this application accordingly fails and is consequently dismissed.
It is hereby ordered that this matter shall accordingly proceed to trial and be given accelerated hearing.
Ruling is entered accordingly.
Hon. Justice R.B.Haastrup