IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z. M. BASHIR
Dated: 10th day of August, 2020 SUIT NO: NICN/ABJ/390/2019
ENGR. ALIYU AHMED NAHUCE------------------------CLAIMANT/APPLICANT
1. THE HONOURABLE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA
2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
3. FEDERAL CAPITAL TERRITORY WATER BOARD----------------DEFENDANTS
Abiodun E. Olusanya for the Claimant
No representation for the Defendant
This a suit that is pending before Hon. Justice E.N. Agbakoba as same was commenced by the Claimant via an Originating summons wherein four issues were raised for determination and also sought for nine reliefs.
Upon the commencement of the said suit, a motion ex-parte was filed on the said 10th of December, 2019 wherein the Claimant/Applicant sought for the following reliefs:
1. An Order of Interim Injunction of this Honourable Court restraining the Defendants, their agents or privies from carrying out any act, or serving the Claimant any letter that will interfere with or undermine the Claimant’s position as the General Manager of the 3rd Defendant pending the determination of the motion on notice.
2. And for such Other Orders that this Honourable Court may deem fit to make in this circumstance.
The court heard the said motion ex-parte but did not grant the relief as prayed. Rather, as can be gathered from the Enrolled Order signed by Honourable Justice E.N. Agbakoba and dated the 12th of December, 2019,, the Court Ordered thus:
“In that wise, the Order of this Court is that the Defendants be put on notice accordingly.”
“Meanwhile, parties are to maintain the status quo ante pending the hearing and determination of the motion on notice.”
Consequently, the matter was adjourned to the 22nd of January, 2020 for hearing of motion on notice. However, the motion on notice was not heard on the said 22nd of January, 2020 as the Claimant’s counsel posited that the Defendant had issues relating to representation while other applications were filed before the court which were slated for hearing on the 15th of October, 2020.
The foregoing being the status of this suit before Hon. Justice E.N. Agbakoba, the Claimant/Applicant subsequently filed another motion ex-parte before this court and brought same pursuant to Order 17 Rule 1 (1), 12 (3), 13 and 14, Order 21 Rule 1 and 2 and Order 22 Rule 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 29 paragraphed affidavit deposed to by Abiodun E. Olusanya, with 4 exhibits and a written address.
The Claimant/Applicant also filed a 32 paragraphed affidavit of urgency deposed to by the said Abiodun E. Olusanya.
Arising from the facts deposed in the affidavits filed in support of the motion ex-parte, the deponent posited that the Claimant/Applicant is a General Manager in the employment of the 3rd Defendant and his appointment is subject to the tenets of the Federal Capital Territory Water Board Act 2017. He added that the 1st Defendant through the 2nd Defendant had attempted to remove the Claimant/Applicant from office in contravention of the said Act and same was challenged by the Claimant/Applicant via a summons pending before this court. Prior to hearing the summons however, this court had heard a motion ex-parte upon whichthe Court directed parties to maintain status quo ante pending the determination of a motion on notice filed before the court. Deponent added that the hearing of the motion on notice was delayed while the Defendant had filed an application for this court to set aside its Order but the court adjourned the hearing of pending motions to 15th of October, 2020. However, instead of the Defendants to abide by the pending Order of the Court, the 1st Defendant through the 2nd Defendant served the Claimant a letter dated the 21st of July, 2020, removing and redeploying the Claimant from his office as General Manager of the 3rd Defendant.
It is pursuant to the said letter that the Claimant/Applicant has approached this court ex-parte for reliefs, including an order of interim injunction to reinstate the Claimant/Applicant back to office as General Manager; an order declaring that the Claimant/Applicant should continue in office as General Manager and an order of interim injunction restraining the Defendant from interfering with the performance of the Claimant/Applicant’s duties as General Manager.
While I reckon that the reliefs are intended to be granted pending the hearing of a motion on notice filed on the 23rd of July, 2020, I must state that injunctions sought via motion ex parte are not granted as a matter of course. Rather, they are granted upon the satisfaction of certain conditions as enumerated by the Court of Appeal in the case of DRESSER INC. v. ANATRADE LTD.(2003) LPELR-12400(CA)where the court 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)
On the strength of the foregoing authority, I have taken due consideration of the entire facts upon which the reliefs sought are predicated and I have also considered the argument of counsel to the Claimant/Applicant as canvassed in the written address. Based on the foregoing, it is clear that the reliefs sought by the Claimant/Applicant are reparative reliefs rather than preventive as the res in question has already been affected. The deponent stated via paragraph 12 of the affidavit in support of the motion ex-parte that the Claimant/Applicant had already been served with a letter removing him from office and annexed a copy of the said letter as Exhibit C which upon evaluation shows that the Claimant/Applicant was to handover on the 23rd of July, 2020.
In view of the foregoing, I must state that the act of the Defendants which is contended to have been carried out in contravention of the order of this court is a completed act against the res and an injunction cannot be granted to forestall a completed act as the court in the case of Ideozu & Ors v. Ochoma & Ors (2006) LPELR1419 (SC) held that:
“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 Per Tobi JSC (of blessed memory).
In the face of the foregoing authority, I reckon that Counsel to the Claimant/Applicant cited the case of the Gambari v Bukola (2003) All FWLR (Pt. 158) 1198 @ 1212 to contend that though injunctions cannot be granted against a completed act, however,where the party sought to be restrained deliberately proceeds with the action intended to be restrained by an order of injunction after becoming aware of the pendency of an application before a competent court for the restrain, such a party cannot be allowed to profit from his misconduct to totally disrespect the court of law.
Notwithstanding the said position of the law, the instant case must be distinguished as I am not oblivious of the fact that there was an existing Order of this court for parties to maintain status quoante which the Claimant/Applicant has alleged that the Defendants/Respondents violated and same amounts to contempt of court.
The cumulative effect is that the court jealously guards its power to punish for contempt of its order. In APC & Ors. v. Karfi & Ors (2015) LPELR 41857 (CA). the Court held interalia that: “it is a plain and ungratified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until the order is discharged”.
That notwithstanding, the consequence of breaching or violating a court order which is considered as contempt is not to make a reparation ex-parteagainst the party alleged to have committed the said contempt. In other words, an order bringing about a reparation cannot be made via a motion ex-parte.
Bearing the foregoing in mind, this court cannot grantthe reliefs sought ex-parte over a completed act in the absence of the Defendants as same will negate the legal concept of fair hearing.
Consequently, it is the considered view of this court that the Defendants/Respondents be put on notice in order to properly determine the propriety of the grant of the reliefs sought by the Claimant/Applicant in the interest of justice and fair hearing.
In the final analysis, the reliefs sought cannot be granted ex-parte and they are accordingly refused.
Ruling is accordingly entered.
HON. JUSTICE Z. M. BASHIR