IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z. M. BASHIR
Dated: 13th day of August, 2020 SUIT NO: NICN/KN/21/2020
1. ROAD TRANSPORT EMPLOYER’S ASSOCIATION OF NIGERIA
2. JA’ENA ALAMU
(THE CHAIRMAN, RTEAN, KANO)
3. ISHAQ MUHAMMED ISHAQ
(THE TREASURER, RTEAN, KANO)
4.ADO ISA AHMED
(THE FINANCIAL SECRETARY, RTEAN, KANO)-----CLAIMANTS/APPLICANTS
1. ALHAJI MUSTAPHA JIBRIN
(THE FORMER CHAIRMAN, RTEAN, KANO)
2. DANLADI BABA
(THE FORMER TREASURER, RTEAN, KANO)
3. MUHAMMED B. ABUBAKAR
(THE FORMER FINANCIAL SECRETARY, RTEAN, KANO)------DEFENDANTS.
A.H. Abubakar for the Claimant
No representation for the Defendant
Claimants commenced this suit by filing an originating summons on the 27th of July 2020 wherein three questions were set out for determination and pursuant to which four 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 1 and Order 22 Rule 1 (1), (2) and (3) 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 21 paragraphed affidavit deposed to by Ja’e NaAlamu along with 5 exhibits and a written address.
The said motion ex-parte was moved before this court by counsel to the Claimants/Applicants, A.H. Abubakar who referred this court to the processes filed and urged the court to grant the application as prayed.
Arising from the affidavits filed in support of the motion ex-parte, the summary of facts upon which this application is predicated is that the term of office of the 1st, 2nd and 3rd Defendants expired since 2017 and they were removed from office by the 1st Claimant based on some anti-union activities while the 1st Claimant appointed the 2nd, 3rd and 4th Claimants into the respective offices of the 1st 2nd and 3rd Defendants.However, the 1st, 2nd and 3rd Defendants have continued to parade themselves and exercise powers as the holders of the said offices. The deponent added that unless the Defendants are restrained, the actions of the 1st, 2nd and 3rd Defendants will cause irreparable damage against the Kano branch of the 1st Claimant/Applicant.
It is consequent upon the foregoing facts that the Claimant holds the notion that it is of urgent importance to consider this application and grant the interim order of injunction restraining the 1st 2nd and 3rd Defendants from parading themselves as Chairman, treasurer and financial secretary of the Kano branch of the 1st Claimant, pending the hearing and determination of the originating summons.
In view of the forgoing facts and the relief sought by the Claimant/Applicant, I have taken due consideration of the arguments of counsel to the Claimants/Applicants as canvassed in the written address in support of this application and the sole issue for the determination of this application is to wit:
Whether or not the relief sought via this application is competent and can be granted by this court.
In resolving the sole issue, I must foremost posit that the courts have long settled the conditions for the grant of an exparte injunction in the case of Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 where the court held that:
“unlike an interlocutory injunction properly so called, an interim injunction is not one granted till the determination of the suit. It is an injunction made until a named date or until further order or until an application on notice can be heard… Interim orders for injunction can be made pending motion on notice of an interlocutory injunction where applicant is able to show that irretrievable damage may be done before the completion of the hearing of the interlocutory application - See Beese v. Woodhouse (1970) 1 W.L.R. 586,590. An interim injunction is intended to be temporary in its character and any person at whose suit such an injunction is obtained is under an obligation to limit, so far as possible, the time during which it is operative. See Port way Press Ltd. v. Hague (1957) R.P.C. 426 at p. 429. In such a case, the court makes an order to preserve the status quo until the application for interlocutory injunction can be heard and determined. The paramount objective being the doing of justice to the parties, the court has a duty to preserve and protect the right of the parties before it from destruction by either of the parties where such a right is threatened by imminent danger from the action of the other. See Anton Piller KG v. Manufacturing Processes (1976) 1 All E.R. 779." Per KARIBI WHYTE, J.S.C.(as he then was) (Pp. 93-94, paras. A-B)
Bearing the foregoing condition in mind, it is instructive to note that the interim injunction sought by the Claimants/Applicants in the instant application is intended to last till the end of the hearing and determination of the Originating summons filed by the Claimants/Applicants. In other words, the Claimants/Applicants want the injunction to be pending the determination of the substantive suit.
For avoidance of doubt, I find it imperative to reproduce the said relief which reads thus:
“An Order of interim injunction restraining the 1st 2nd and 3rd respondents either by themselves or through their agents, privies and or assigns or any person acting on their behalves from parading themselves as Chairman, treasurer and financial secretary respectively of the Kano branch of the 1st Applicant, pending the determination of the originating summons”. (emphasis mine).
Upon the consideration of the foregoing relief, I am mindful of the holding of the court in DRESSER INC. v. ANATRADE LTD.(2003) LPELR-12400(CA)where the court had reckoned that an ex-parte order cannot be granted pending the determination of the substantive suit or action.
A careful consideration of the foregoing shows clearly that a grant of the relief sought by the Claimants/Applicants will preclude the Defendants 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.
It must therefore be stated clearly that interim injunctions sought via motion ex-parte cannot be granted pending the determination of the substantive suit and that makes the relief sought by the Claimants/Applicant to be legally incompetent as same cannot be granted by this court.
It is also noteworthy that the Claimants/Applicants failed to file a motion on notice along with the motion ex-parte and same is considered to bean indication that they do not wish for the Defendants to be given fair hearing in the grant of the injunction sought before this court.
For want of emphasis, one of the condition for the grant of a relief sought via motion ex-parte is that the motion ex-parte should be accompanied by a motion on notice which can be heard on a fixed date soon after the grant of the ex-parte relief. To this effet, the court in Kotoye v. C.B.N. (1989) (supra) held that:
“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 comes, 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.”
In the instant case, there is no such motion on notice before this court and the relief sought cannot be granted sine die. Consequently, the sole issue for the determination is resolved against the Claimants/Applicants as the relief sought by the Claimants/Applicants is incompetent in the circumstance and same is accordingly refused.
Ruling is accordingly entered.
HON. JUSTICE Z. M. BASHIR