IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: TUESDAY, 27TH OCTOBER 2020
SUIT NO: NICN/LA/134/2020
BETWEEN
DR. OLUYEMI FAYOMI CLAIMANT/APPLICANT
AND
COVENANT UNIVERSITY DEFENDANT/RESPONDENT
Representation:
K S Jola appears for the Claimant
C Chioma appears for the Defendant
RULING
Introduction and Claims:
1. The Claimant filed this suit on the 8th of June 2020 and claims against the Defendant the following reliefs:
i. A declaration that the setting up of the Faculty/Staff Disciplinary committee by the Defendant to try the Claimant is wrongful and amounts to a gross violation of the Covenant University’s Staff Handbook and conditions of Service and the said committee’s proceedings and decision against the claimant are wrongful and illegal.
ii. A declaration that the termination of the Claimant’s employment as an Associate Professor of International Relations with the Defendant based on the proceedings of the Defendant’s Faculty/Staff Disciplinary committee, which birthed the letter dated 21st August, 2019 is irregular, wrongful, illegal and consequently null and void.
iii. A declaration that the Claimant’s appointment with the Defendant having not been determined in accordance with proper procedure stipulated in the Covenant University’s Staff Handbook and Conditions of Service the Claimant still remains a member of Staff of the Defendant institution.
iv. A declaration that the Claimant is entitled to all benefits and perquisites of office as an Associate Professor of International Relations including official accommodation at the Defendant’s Staff Quarters; Duplex B7, New Estate, KM 10, Idiroko Road, Ado-Odo, Ota until her appointment is lawfully determined.
v. An order of this Honourable Court directing the Defendant to pay the Claimant all her outstanding emoluments until the Claimant’s employment with the Defendant is lawfully determined.
vi. An order of this Honourable Court directing the Defendant to release to the Claimant her Doctor of Philosophy Degree/Certificated without delay.
vii. Damages in the sum of N5Million for wrongful and forceful lack up of the Claimant’s residence and consequential exposure of her and her children to danger, homelessness and public ridicule between 20th of January, 2019 and 20th of February, 2020.
viii. An order of injunction restraining the Defendant agent, servants and privies from ejecting the Claimant from her residence at Duplex B7, New Estate, KM 10, Idiroko Road, Ado-Odo, Ota until the lawfully determination of the Claimant’s employment.
2. The Claimant brought this application, the subject of this Ruling, pursuant to Order 17 Rules 1 & 12 and Order 22 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of this Court, and seeks for an order of interlocutory injunction:
restraining the Defendant/Respondent, her agents, servants, workmen, employees, or privies from ejecting the Claimant/Applicant from the Covenant University Staff Quarters; Duplex B7, Professors’ Lounge, New Estate, KM. 10, Idiroko Road, Ado-Odo Ota Local Government, Ogun State pending the final determination of this suit.
The grounds upon which the application is brought are that:
1. The Employment of the Claimant/Applicant is yet to be determined by the Defendant/Respondent in accordance with proper procedure and or in manner stipulated or cognizable by law.
2. The Claimant/Applicant’s residence was once locked up by the officers/agents of the Defendant/Respondent and only re-opened by the Defendant after the intervention of certain well-meaning persons.
3. The officers of the Defendant have been threatening the Claimant with forcible ejection from her official residence.
4. The Claimant/Applicant has not been paid her monthly emolument since the month of August, 2019 and the multiplier effect of the Covid-19 pandemic on the Applicant has confined her to her current residence from which the Defendant/Respondent intends to eject her.
3. The application is supported by a 19 paragraph affidavit deposed to by the Claimant. She deposed to the fact that she has been in the service of the Defendant since the year 2003 and has worked diligently till she was appointed an Associate Professor of International Relations by the Defendant University. That she was handed a questionable and purported letter of termination of her appointment in the month of August of the year 2019. She protested against the said termination and appealed to the Defendant’s Chancellor to intervene; but while the appeal was yet to be determined, certain officers from the Defendant’s Directorate of Physical Planning began to threaten her with eviction from her quarters and eventually locked her out of the residence for a period of one month. It took the intervention of some well-meaning Nigerians before she was allowed back to the residence. The said officers have begun to renew their threat which will overreach the interest of the Applicant in her current residence, as she may be thrown out again. The officers of the Defendant indeed returned on the 26th day of May, 2020 to make good their threat by effecting service of a notice to eject the Applicant by any means at the expiration of seven days after the said service. She averred that damages will not be adequate compensation for the acts of inconvenience and injustice that will be perpetrated on her by the Respondents if not restrained.
4. In his written address in support of the application, Counsel, on behalf of Claimant/Applicant, set a lone issue for determination, to wit:
Having regard to material facts placed before this Honourable Court, whether it would not be just to restrain the Defendant/Respondent from carrying out acts inimical to the interest of the Applicant with regard to her residence at Covenant University’s Staff Quarters pending the final determination of this suit.
5. Counsel argued that the Claimant has fulfilled the requisite conditions as laid down in numerous judicial authorities, for the grant of an interlocutory injunction. He submits that by paragraphs 3, 5, 8, 9 and 10 of the Affidavit in Support of this application, the Claimant has adduced facts to show that she has the legal right which ought to be protected by way of injunction. Counsel argues that the Applicant’s residence is legally hinged on her employment with the Defendant and that the employment has not been terminated in line with the Covenant University’s Staff Handbook and Conditions of Service as a professorial staff. The Claimant also submits that from the pleadings filed by the Claimant/Applicant, it can be garnered that there are multifarious issues for trial in this case.
6. The Claimant also submits that the balance of convenience in this case is on the side of the Applicant; and that the Applicant would be highly prejudiced and such deprivation will expose her to a great deal of hardship cum, inconvenience, and no amount of damages would be adequate compensation for all these. Counsel also noted Applicant’s undertaking at paragraph 17 of her affidavit to pay damages should this application be granted and the pendulum of this case swings to the side of the Respondent at the conclusion of the trial.
7. In opposition to the application, the Defendant filed a 29-paragraphed counter affidavit deposed to by Prof. Sheriff Folarin, the H.O.D of the Department of Political Science and International Relations of the Defendant. The Deponent averred to the fact that before the Claimant’s employment with the Defendant was terminated, a committee established by the Defendant’s University’s new Staff Handbook and Condition of Service, 2019 and known as Faculty/Staff Disciplinary Committee (FSDC) was duly and legally constituted to investigate the various allegations of unprofessional conducts towards her colleagues and students, insubordination and unethical behaviour and at the end of the investigation, she was found guilty of the allegations. He averred that the termination of the Claimant’s employment with the Defendant’s University is valid. The Deponent further averred to the fact that a staff residency is determined by his/her employment status; and once the employment of a staff is determined either by termination or otherwise, his/her residency also terminates and all legal rights of the staff to residency in his/her official apartment shall cease from the time of termination. That the welfare or wellbeing of the Claimant and that of her children is none of the business of the Defendant, as the employment relationship between the Claimant and the Defendant has been terminated. He deposed that the staff quarters in question being contested by the Claimant is urgently needed by the Defendant to accommodate her (Defendant’s) new employee that has been employed to take the place of the Claimant who has been sacked.
8. The Defendant set a sole issue for determination:
Whether, in the circumstances, the Claimant is entitled to an Order of Interlocutory Injunction against the Defendant in view of the facts placed before this Honourable Court.
9. In arguing the issue, the Defendant submits that in view of the totality of the facts placed before this Court, especially as contained in the Counter Affidavit and the exhibits attached, the Claimant IS NOT AND CANNOT be entitled to any order of the Court for interlocutory injunction against the Defendant. He argues that this is because the Claimant has not, in anyway, been able to satisfy the conditions required by law for the grant of an order of interlocutory injunctions against the Defendant. The Defendant submits that the Claimant has no legal right at all against the Defendant; her employment with the Defendant having been terminated on 21st August, 2019, vide Exhibit CU4 which also mandated her to vacate and give up possession of the Defendant’s staff quarters.
10. On whether there are serious questions to be tried, the Defendant submits that Claimant has not been able to show in her affidavit or pleading that she has a real possibility and not a probability of success at the trial. On the balance of convenience, the Defendant submits that the balance of convenience is rather on the side of the Defendant and not on the side of the Claimant as the Defendant is mostly to suffer more inconvenience if the application is granted because the Defendant will be deprived of its right over the use of the staff quarters by the Claimant who is not her employee anymore. The Defendant submitted that assuming but without conceding that there is any hardship on the Claimant as she alleged or any balance of inconvenience on her side, such alleged hardship or balance of inconvenience is nothing but self-inflicted or self-induced due to her persistent disobedience.
11. On the inadequacy of damages as compensation, the Defendant submits that even if the Claimant succeeds in the action at the end of the trial, damages will definitely be an adequate compensation to her and that the Defendant is in a very good financial position to pay them in the event that the Court finds that the termination was wrongful. The Defendant also submits that the Claimant whose employment was terminated in August, 2019 vide the Letter of Termination dated 21st August, 2019 and was mandated by the same letter to immediately vacate the staff quarters but ignored it; approached the Court ten months after to seek an order of interlocutory injunction against the Defendant without any explanation as to the reason for her undue delay. The Defendant also submits that the Claimant has not been able to give satisfactory undertaking as to damages, in that it is very obvious that the Claimant is actually not in any financial position to honour her undertaking in the likely event that she fails and the Defendant succeeds at the trial. The Defendant contends that it is rather in a much better financial position to pay damages to the Claimant in the event that Claimant’s suit succeeds.
12. In her further affidavit, the Claimant deposed to the fact of her contributions to the Defendant, and that the only queries from the Defendant were for minor issues which were eventually resolved in her favour. The Claimant in Reply to the Defendant on Point of Law stated that the circumstances that are relevant to the exercise of discretion of the court to grant an order of interlocutory injunction are those that show that the Applicant has a legal right in the res worthy of protection. She challenged the purported new handbook relied on to terminate her appointment as not being in existence at the time of the termination of her appointment. The Claimant further stated that she had presented at least three issues that are likely to arise for determination during the hearing of the substantive case. On the Defendant’s introduction of a third party interest, the Claimant contends that this seeks to preempt the decision of the Court. The Claimant also submits that she was not guilty of any undue delay as she was still in communication officially with the appellate body of the Respondent institution as well as the Board of Regents of the Respondent which is reputed to be the highest decision making organ of the University.
DECISION
13. This Court on 18th June 2020 granted an order of interim injunction restraining the Defendant from ejecting the Claimant from her residence at the Staff Quarters of the Defendant pending the determination of this motion on notice for interlocutory injunction. The hearing of the motion on notice is to enable the Defendant to respond to the application for injunction.
14. It is the requirement of the law as stipulated by the Supreme Court per Nnaemeka-Agu, JSC in the celebrated case of KOTOYE V. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (PT. 98) 419 at 441 that:
In an interlocutory injunction application the court has to decide a number of important factors including:
(a) That the applicant must show that there is a serious question to be tried i.e. that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any). [Obeya Memorial Specialist Hospital v. A – G, Federation (1987) 3 NWLR (Pt. 60 325 followed)];
(b) That the applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it. [Missini v. Balogun (1968) 1 All N.L.R. 318 referred to];
(c) That the applicant must show that damages cannot be an adequate compensation for his damage or injury if he succeeds at the end of the day;
(d) That the applicant must show that his conduct is not reprehensible, for example that he is not guilty of any delay;
(e) No order for interlocutory injunction should be made on notice unless that applicant gives a satisfactory undertaking as to damages save in recognised exceptions.
(f) Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.
15. What is therefore required to be determined is if this application meets all the requirements for the grant of an interlocutory injunction. This application seeks that the Defendant be restrained from ejecting the Claimant from the Defendant’s Staff Quarters; Duplex B7, Professors’ Lounge, New Estate, KM. 10, Idiroko Road, Ado-Odo Ota Local Government Ogun State pending the final determination of this suit. The major ground for this application as I see it, is that the Claimant’s employment is yet to be determined by the Defendant in accordance with proper procedure and or in the manner stipulated or cognizable by law.
16. The Defendant has made it clear that it requires the Claimant to vacate the premises she occupies as she is no longer its staff; to enable her replacement take up residence in the same premises. In determining this application, I set a lone issue for determination, namely:
Whether the Claimant is entitled to the relief she seeks in this application.
17. The conditions listed in the case of Kotoye v. CBN supra) has been followed in a plethora of cases, that needs not be mentioned, especially since the parties both agree on the said listed conditions. I shall therefore take the conditions one after the other, to determine if the requirements are met in this application.
(i) Whether there is a legal right to be protected.
18. The Claimant in her affidavit in support of this application deposed to the fact that her employment has not been terminated in accordance with the terms and conditions of her employment. She argued that she has a legal right which ought to be protected by way of injunction in that her residence is legally hinged on her employment with the Defendant. On the other hand, the Defendant averred that the Claimant’s employment was duly terminated in accordance with the Claimant’s contract of employment; and that a staff residency is determined by his/her employment status. Once the employment of a staff is determined either by termination or otherwise, his/her residency also terminates and all legal rights of the staff to residency in his/her official apartment cease from the time of termination. The question is; what is the legal right sought to be protected in this application. I see it to be the right to continued residence in Defendant’s premises as a staff of the Defendant. I do not see it to relate to the issues surrounding Claimant’s termination. Those issues relating to Claimant’s termination are the ones constituting Claimant’s substantive action, and to consider them as the legal rights sought to be protected in this application, will lead to a determination of the substantive suit itself, which trial Courts have been advised to be wary of. See IN RE: ABDULLAHI (2018) LPELR-45202(SC). The Claimant has sought several reliefs including the declaration of the termination as irregular, wrongful, illegal and consequently null and void; and a declaration that the Claimant’s appointment with the Defendant having not been determined in accordance with proper procedure stipulated in the Covenant University’s Staff Handbook and Conditions of Service, the Claimant still remains a member of Staff of the Defendant institution. I could not help but consider the nature of Claimant’s employment, and have seen that it is a contract of service in the private sector – master and servant relationship. I have therefore considered if, assuming the Claimant gets all her reliefs in this suit, whether she can have an order that will entitle her to the continued use of the Defendant’s accommodation. The University is clearly a private institution; thus the Claimant’s employment lacks statutory flavour. This means that, even if the termination is declared null and void, this Court cannot order her continued employment, with the consequence of continued residence in the accommodation in issue in this application. It is on this basis that I do not find the existence of a legal right to an accommodation which is tied to an employment in a private institution such as the Defendant.
(ii) Is There Serious Question to be Tried?
19. I have considered the pleadings exchanged between the parties in this case, and find that there are multifarious issues for trial in this case; such as, whether the panel that investigated the Claimant is such as is contemplated by the Defendant’s Staff Handbook and Conditions of Service and whether the employment of the Claimant was terminated in consonance with the provisions of the Covenant University’s Staff Handbook and Conditions of Service. This finding means that a cause of action is maintainable. However, it does not detract the fact that, as found in (1) above, no decision of this Court can order the Defendant to continue to employ the Claimant, being that the employment is one lacking statutory flavour.
20. As stated in the case of Enunwa v. Obianukor (2005) 11 NWLR (PART 935) 100 AT PAGE 120 PARAS B-C cited by the Claimant in her written address:
If damages will be inadequate compensation, the question will then be asked – in whose favour is the balance of convenience? Balance of convenience simply means the disadvantages to one side or other, which damages cannot compensate.
21. The balance of convenience is basically considered where compensation will be inadequate. From the facts of this case, I am convinced that damages will be an adequate compensation where judgment is found in favour of the Claimant. This is due to the nature of the employment between the parties.
(iv) Inadequacy of Damages as Compensation
22. The governing principle on the adequacy or otherwise of damages as compensation is that the Court should first consider whether if the Claimant were to succeed at the trial in establishing her right to a permanent injunction, she would be adequately compensated by an award of damages for the loss she would have sustained as a result of the Defendant's continuing to do what was sought to be enjoined between the time of the application and time of the trial. I find in this case that damages in the measure recoverable would be adequate.
23. It is the Claimant’s submission that she cannot be held to be guilty of any undue delay as claimed by the Respondent. She contends that she was still in communication officially with the appellate body as well as the Board of Regents of the Defendant up till the 24th day of December 2019 and unofficially beyond and until the outbreak of coronavirus in Nigeria in the month of February 2020. I do not find that the Claimant is guilty of undue delay in bringing this application; upon being served with notice by the Defendant in May 2020. This was one of the reasons for the grant of the interim order of injunction; in addition to the lockdown that was in place in the whole country, as a result of the corona virus pandemic.
(vi) Satisfactory Undertaking as to Damages
24. The Claimant in paragraph 17 of her affidavit undertook to pay damages should this application be granted and the pendulum of this case swings to the side of the Defendant. However, considering her averments in paragraphs 11 and 12 of her affidavit, I am in doubt of the Claimant’s ability to honour her undertaking in the event that she fails and the Defendant succeeds at the trial. I rather accept as deposed by the Defendant in paragraph 25 of the Counter Affidavit, that the Defendant is in a much better financial position to pay damages to the Claimant in the event that Claimant’s suit succeeds.
25. As a result of my findings above, I hold that the Claimant has not been able to satisfy all the above conditions as required by law. The relief sought is therefore declined. The Interim order is now vacated. However, the Defendant must comply with the provisions of law in its bid to take over possession of the premises in question.
Ruling is entered accordingly. I make no order as to cost.
…………………………………….
Hon. Justice Elizabeth A. Oji PhD