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/186/2020
MR. ALBERT OMOOLORUN ADEOLA-------------CLAIMANT/APPLICANT
POILCE SERVICE COMMISSION---------------------------DEFENDANT
Ogechi P. Ogbenna for the Claimant
No representation for the Defendant
Claimant commenced this suit by way of a General Form of Complaint filed on the 3rd of August 2020 accompanied by a statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.
The Claimants filed along with the said Complaint, a Motion Ex-parte brought pursuant to section 36(1) and (4) of the Constitution of Federal Republic of Nigeria 1999 (as amended), Order 14 Rule 2 of the National Industrial Court Civil Procedure Rules 2007 and under the Inherent Jurisdiction of this Honourable Court.
The said Motion Exparte is seeking for the reliefs as contained on the motion papers and same is also accompanied by a 42 paragraphed affidavit deposed to by Albert OmoolorunAdeola with 13 exhibits and a written address.
The Claimant also filed a 37paragraphed affidavit of urgency deposed to by the same Albert OmoolorunAdeola.
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 Claimant posited that he is a confirmed employee of the Defendant and he sat for a promotion examination sometime in 2019 and ranked second but he was not promoted as the Defendant failed to carry out the directives of the Head of the Civil Service of the Federation in creating 3 new departments. He added that he is the rightful person to be promoted to the rank of Director in 2019 and not one Mr. Maurice Achibongas the 2019 promotion exercise was clothed in error and without the correction of the error, the promotion exercise is inconclusive. He added that he had appealed severally against the denial of his promotion but no response was received from the Defendant and instead of responding to him, the Defendant is busy planning another promotion exercise slated for August 5, 2020 at a venue yet to be known.
Consequent upon the foregoing facts, the Claimant posited that the Defendant shall not be negatively affected if he (the Claimant) is promoted to the rank of Director or if the promotion exercise is suspended pending the determination of the motion on notice.
In view of the prayers sought by the Claimant, I reckon that the Claimant had filed a motion on notice wherein interlocutory reliefs are being sought for while the prayers sought for in the motion exparte are intended to be in the interim, when the motion on notice can be heard.
That notwithstanding, 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, the Applicant by the reliefs sought wants the court to grant an interim injunction restraining the Defendant or any person acting for or on their behalf from conducting the proposed 2020 promotion examination slated for August 5, 2020 pending the hearing and determination of the motion on notice before this court; to restrain the Defendant from suspending, dismissing, demoting, transferring, posting or querying the Claimant pending the hearing of a motion on notice before this court and to restrain one Mr. Maurice Achibong from parading himself as Director of the Defendant.
Upon a careful consideration of the orders sought by the Claimant/Applicant and the conditions for the grant of injunctions sought via a motion ex-parte, I must foremost posit that the Claimant/Applicant did not annex any exhibit to depict that a promotion examination is fixed by the Defendant and same is slated for the 5th of August, 2020. In addition, There is no exhibition by any documentary evidence placed before this court by the Claimant/Applicant to show that the said promotion exam slated for the 5th of August, 2020 shall affect the Claimant/Applicant or that same is targeted against the Claimant. In addition, assuming that the said promotion exam was slated and the proof of same is before the court, the court does not grant an order to restrain a completed act. The court in the case of S.P.D.C. v. Hotel De Defama Ltd. (2007) ALL FWLR (Pt. 359) 1395 at 1402 Paras. E - G, 1405 Paras. B - C (CA)held that:"A completed act is not a subject for which an order of injunction is granted."Per.Muhammad, JCA.
In other words, once the conduct or act is completed, the relief of interlocutory injunction is totally spent as it has no life to attack or tackle the completed act or conduct. See Ideozu&Ors v. Ochoma&Ors (2006) LPELR1419 (SC) Per Tobi JSC (of blessed memory).
That said, 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 promotion of the Claimant can be adequately and sufficiently addressed upon hearing the substantive suit and the court can make consequential orders for promotion if found deserving.
Consequently, thereliefs sought by the Claimant/Applicant via the motion ex-parte lacks merit and they are accordingly refused based on the foregoing reasons and in the interest of justice and fair hearing.
Ruling is accordingly entered.
HON. JUSTICE Z. M. BASHIR