IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE I. S. GALADIMA.
DATE: 2nd September 2020 SUIT NO: NICN/abj/185/2020
· ADEBAYO SOMEFUN CLAIMANTS/APPLICANTS
· OLUKEMI NELSON
· MINISTER OF LABOUR AND EMPLOYMENT
· PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA DEFENDANTS/RESPONDENTS
· ATTORNEY GENERAL OF THE FEDERATION
· O.O. JOLAAWO, (SAN); T.J. ADEGOKE; A.M. ABBA FOR THE CLAIMANTS/APPLICANTS.
· DEFENDANTS/RESPONDENTS – UNREPRESENTED.
1. On 31/8/2020, these Claimants as applicants, appeared via their Counsel to seek the following orders ex parte pending the determination of the substantive motion for same, that is for:
i. An order of interim injunction restraining the Defendants/Respondents, either acting by themselves or through their agents, privies, including Presidential Joint Board and Audit Investigation Panel on Nigerian Social Insurance Trust Fund (NSITF) from harassing or intimidating the Claimants/Applicants, or taking further steps consequent upon the purported suspension of the Claimants/Applicants and requesting any written submission from the Claimants/Applicants pending the hearing of the Motion on Notice.
ii. And for further orders as this Court might deem fit to make.
2. These applicants as Claimants allege that they were unlawfully suspended by the Defendants/Respondentsas Managing Director/CEO and Executive Director of NSITF respectively on the 1st of July, 2020without fair hearing and so being aggrieved, they filed the main action by originating summons, for the purpose of having some questions answered, forlegal redress and to purportedly prevent these Respondents from further harassing them from occupying and enjoying their respective offices.
3. The grounds for which the application is sought are set out in the motion paper of 24/8/2020. There are 10 in number. The application is said to be urgent and so it is not only supported by an affidavit of 4 paragraphs, but an affidavit of urgency equally containing 4 paragraphs all duly deposed to. There are 8 exhibitsin total. An anticipatory motion on notice seeking these same reliefs, was also filed. Pursuant to the rules of this Court, the application was accompanied by a written address which was adopted and moved by these Applicants’ Counsel on 31/8/2020, thus necessitating this here ruling today.
4. Learned Counsel raised a sole issue for determination which is whether these Claimants have disclosed sufficient facts to warrant the grant of this interim injunction. His argument is that it was important for them to preserve the res in order to forestall further damage. He relied on ENEKWE V. IMB (citation supplied). Accordingly, like in the case of UTB V. DOCMETSCH PHARM NIG LTD. (citation supplied), these applicants have satisfied this Court that all the ingredients which the Supreme Court identified in that case, also apply here.
5. With respect to why this matter must be considered urgent, learned Counsel canvassed that the affidavit established that there are overwhelming reasons that any further delay in the grant of this application, will enable these Defendants/Respondents in perfecting their illegal acts. Accordingly, it had been shown in the accompanying affidavits that the Defendants/Respondents shall take further actions inimical to these Applicants’ interests and rights.
6. Counsel believes also that the balance of convenience tilts in favour of the grant of this application. He cited and relied on the case of NOVARTIS PHARMA SEN INC V. SWISSCO NIG LTD (citation supplied). He also argued that the substantive suit raises serious triable issues which he believes shall eventually be in favour of these Applicants. He pleaded that it shall be in the interest of justice to grant the relief sought.
7. I have satisfactorily gone through these arguments, the authorities relied upon and read all the processes filed by these Applicants. They seek an order of interim injunction to restrain these Defendants/Respondents from what they believe is further harassment subsequent to their suspension from their respective offices on the 1/7/2020 by the Defendants. The sole issue raised by these Applicants is equally formulated as the basis of the findings and the decision to be reached in this ruling. The issue is whether these Applicants are entitled to the order of interim injunction sought against these Respondents?
8. I concede that ex parte orders of restraint are for cases of real urgencies where there has been a true impossibility of giving notice of motion. However, such injunction will be refused unless the applicant has an overwhelming case on the merits. An interim order of restraint shall only be granted in a case of an emergency for instance where there is a property which is in danger of being lost or destroyed forever – see E.S.C.S. LTD. V. N.M.B. (2006) 14 WRN page 100 – 101; or where it shall be completely impossible for the applicant to be restituted or adequately compensated at the conclusion of the matter if he succeeds, thus rendering the judgment nugatory. It is one granted to preserve the status quo and to last until a named date or definite date or until further order or pending the hearing and determination of the motion on notice. Since it is merely meant to leave matters in its status quo without considering any contentious matter, it is enjoined that it be granted judiciously and judicially by the Courts. It is not granted automatically upon its application.
9. It is trite law thatthe suspension of an employee under the law of employment does not amount to a breach of his fundamental or common rights –AMADIUME V. IBOK (2006) 6 NWLR (PART 975) PAGE 163. In fact, an employer’s right to suspend any of its staff where reasonable grounds exist, is unqualified – KOOMLONG I. MIAPHEN V. UNIJOS CONSULTANCY LIMITED (2013) LPELR – 21904 (CA). A suspension means the act of temporarily delaying, interrupting, or terminating something. It infers also a temporary withdrawal from employment, as distinguished from a permanent severance with or without salaries paid. It could also entail the withdrawal of certain privileges of office which the applicant was otherwise entitled to have and it is a complete act in itself with a definite starting point of reference liable to be challenged by any person affected by the act – see INEC V. OKORONKWO (2009) LPELR – 4321 (CA).
10. It means that unless the Applicants can establish extraordinary circumstances whichnecessitates the restraint of the Defendants, they shall not ordinarily be entitled to an order of interim restraint against the employers. They purported from their joint affidavits in support of the ex parte application as well as theirurgency, that their present tenure shall expire by April 2021 – paragraph 3(g). That having been suspended by the 1st Defendant/Respondent by letter dated 1/7/2020, the 2nd Applicant in particular was asked to face a Joint Board Audit Investigative Panel which was set up with a mandate to investigate certain misconducts and financial breaches in the funds to the NSITF from 2017 to 2019.
11. By their joint paragraph 3 (k), upon an emergency meeting held by the board of the NSITF on 7/8/2020, these Claimants/Applicants along with others, were suspended from their offices on the premise that they(the Board) had established prima faciefinancial and procurement breaches against them. They allege that the procedures to be followed before such suspension was made, weredisregarded as such, it was necessary for this Court to restrain these Defendants/Respondents from further harassing them pending the determination of the substantive motion on notice. Already, the Presidential Joint Board and Audit Investigation Panel on NSITF had seized the official vehicles of the 1st Claimant/Applicant and is now threatening to confiscate the 2nd Claimant’s/Applicant’s – paragraph 3 (t). The panel is equallycapable of rendering the outcome of this suit, nugatory if not restrained by this Court – paragraph 3(w).
12. One of the conditions for the grant of an interim order of restraint by a Court is that the Applicant may not be adequately compensated or restituted in the event he succeeds in his case. Another condition is that the Court may refuse its grant where same can be made at the conclusion of the trial or if it is the same relief sought in the substantive cause. I am not convinced that should these Claimants succeed in proving their claims filed by way of originating summons before this Court, they shall not be adequately compensated or reinstated to their positions of Managing Director/CEO and Executive Director of the NSITF respectively. Besides, the status quo currently, is that they have already been suspended and so it will be counterproductive to even order the Respondents to retain the current situation until the determination of the motion on notice. The same relief is also being sought in the originating summons filed before this Court and same may be granted upon the conclusion and determination of this suit subject to their success. I am equally convinced that these parties may be heard on the merit of the pending motion on notice before the substantive judge to adjudicate on this here cause, in a short time from now.The Applicants may apply instead, for an accelerated hearing of their main cause before the substantive judge.
13. This application does not therefore warrant its urgent grant. I refuse to exercise my discretion in that direction without prejudice. Same is therefore struck out.
Delivered in Abuja this 2nd day of September 2020.
Justice Ibrahim Suleiman Galadima.