IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z. M. BASHIR
Dated: 5th day of August, 2020 SUIT NO: NICN/ABJ/177/2020
1. SULEIMAN HARUNA
2. ISAAC BAKO
3. SUNDAY ED
4. VERONICA GANDU
6. HASSANA IDRIS
7. TAIBAT IDOWU
8. HELEN EJIMA--------------------------------CLAIMANTS/APPLICANTS
1. NATIONAL BOARD OF TRUSTEES OF PASAN
2. PARLIAMENTARY STAFF ASSOCIATION OF NIGERIA
3. CHAIRMAN, PASAN, NASS CHAPTER
4. PARLIAMENTARY STAFF ASSOCIATION OF NIGERIA
NATIONAL ASSEMBLY CHAPTER----------------------------DEFENDANTS
I.I. Ja’afar for the Claimant
No representation for the Defendant
Claimants commenced this suit by filing an originating summons on the 27th of July 2020 wherein seven questions were set out for determination and pursuant to which six reliefs were sought by the Claimants.
The Claimants filed along with the said Originating summons, a Motion Ex-parte brought pursuant to Order 17 Rule 14 (1)-(4), Order 21 and 22 (1) and (2) of the National Industrial Court Civil Procedure Rules 2017 and under the Inherent Jurisdiction of this Honourable Court.
The said Motion Ex-parte is seeking for the reliefs as contained on the motion papers and same is also accompanied by a 17 paragraphed affidavit deposed to by SulaimanHaruna with 2 exhibits and a written address.
The Claimant also filed an 18 paragraphed affidavit of urgency deposed to by the same SulaimanHaruna.
The highlight of the facts upon which the prayers contained in the motion ex-parte were sought, as can be gathered from the affidavits filed in support of the motion ex-parte is that, the deponent posited that himself and the Co-Claimants are members of the Executive Council of the 4th Defendant and that on the 3rd of February, 2020, the 3rd and 4th Defendants had an emergency congress which was not approved by the Chapter’s Executive Council and at the end of the congress, a communiqué which was not signed was issued wherein sulaimanHaruna, Kingsley Odih, Sunday Ede, Vera Gandu and Isaac Bako were asked to step aside/suspended and directed not to act as members of the Executive Council pending the outcome of the report of an investigative Committee. The Deponent added that sequel to the directive, 1st and 2nd Defendants were petitioned but they failed to act on the petition while the 3rd and 4th Defendants are about to hold a congress/general meeting without the approval of the Executive Council in order to deal with the Claimants/Applicants by impeachment or dismissal.
Consequent upon the foregoing facts, the Claimant posited that any decision taken by the Defendants (at the meeting) shall be detrimental to the Claimants and they will be seriously jeopardized if this application is not granted as they will be stripped off their executive positions and no damages can adequately compensate the Claimants.
In view of the prayers sought by the Claimant, I reckon on the one hand that the Claimant had filed a motion on notice wherein interlocutory reliefs are being sought for and the prayers are exactly as those sought viathe instant motion ex-parte which are intended to be granted pending the determination of the substantive suit.
On the other hand, I must state that interim injunctions sought via a motion ex parte are not granted as a matter of course. Rather they are granted upon the satisfaction of certain conditions and must be predicated on real urgency. In this regard, the Court of Appeal in the case of DRESSER INC. v. ANATRADE LTD.(2003) LPELR-12400(CA) held that:
“The general principles to be considered in the grant of an ex-parte order for injunction are as stated by the Supreme Court in Kotoye v. CBN (1989) 1 NWLR (Pt. 419) which are stated thus:
(a) It can be made when there is real urgency but not a self-induced or self-imposed urgency.
(b) It can be made in an interlocutory or interim injunction application until a certain day usually the next motion date by which time the other side should have been put on notice.
(c) It cannot be granted pending the determination of the substantive suit or action.
(d) It can be granted where the court considers on a prima facie view that an otherwise irreparable damage may be done to the plaintiff before an application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party.
(e) It can be granted where it is necessary to preserve the res which is in danger or imminent danger of being destroyed.
(f) A person who seeks an interim order ex-parte while also applying for an interlocutory injunction, files two motions simultaneously, one ex-parte asking for the interim order and the other on notice applying for an interlocutory injunction; the court before whom the applications come takes the ex-parte motion and if satisfied that it had merit ex-facie grants it making the order to the date when the motion on notice shall be heard.
(g) 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.
(h) The applicant must not be guilty of delay.
(i) It must not be granted unless the applicant gives a satisfactory undertaking as to damages.
(j) Where a court of first instance fails to extract all undertaking as to damages, an appellate court ought normally to discharge the order for injunction on appeal." Per JEGA, J.C.A. (Pp.18-20, Paras. E-B)
In view of the foregoing authority and in the determination of this ex-parte application, I must foremost mention that the reliefs sought by the Claimant which are intended to be granted pending the determination of the substantive suit is incompetent. For avoidance of doubt, relief 1 and 2 on the motion ex-parte reads:
“An order of court restraining the Respondents/Defendants, and their privies from holding any congress, or general meeting or committee meeting pending the determination of the substantive suit”
“an Order directing the defendants to maintain status quo pending the determination of the substantive suit.” (emphasis mine).
A careful consideration of the foregoing shows clearly that a grant of same will preclude the Defendant from having a fair hearing until the determination of this suit and same will be a violation of one of the conditions for the grant of an ex-parte Order as the court in DRESSER INC. v. ANATRADE LTD.(2003) LPELR-12400(CA) had clearly held that an ex-parte order cannot be granted pending the determination of the substantive suit or action.
Consequently, the reliefs sought via the motion ex-parte is legally incompetent and cannot be granted.
In addition to the foregoing, I must add that upon a careful consideration of the reliefs sought by the Claimants/Applicants and the conditions for the grant of injunctions sought via a motion ex-parte, I reckoned that the Claimants/Applicants did not annex any exhibit to show that there is indeed an impending or scheduled meeting.Therefore,it is safe to conclude that the Claimants/Applicants are merely perceiving or speculating an urgency which is not yet in existence and that makes it a self-induced urgency rather than a real one.
Furthermore, in the grant of an order ex-parte, it is trite that there must be a real impossibility of bringing the application on notice and serving the other party. In the instant case/suit, no useful material has been placed before this court to show that there is an impossibility of bringing the application on notice.
Having said that, upon a consideration of the entirety of all the facts deposed in the affidavit in support of the motion ex-parte and the affidavit of urgency, I am of the considered view that there is no urgency whatsoever warranting the grant of an ex-parte order.
In addition to the foregoing, an ex-parte order is granted where damages will not be adequate remedy for the applicant upon the determination of the substantive suit. In the instant case, the issue relating to the Claimants being directed to step aside or be suspended can be adequately addressed upon hearing the substantive suit and the court making consequential orders in respect of same.
Consequently, the reliefs sought by the Claimant/Applicant via the motion ex-parte is not only incompetent, they also lacks merit and the said reliefs are accordingly refused in the interest of justice and fair hearing.
Ruling is accordingly entered.
HON. JUSTICE Z. M. BASHIR