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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP: HON. JUSTICE O. A. OBASEKI-OSAGHAE DATE: January 14, 2016 SUIT NO. NICN/LA/147/2015 BETWEEN PRINCE BENJAMIN SALIU IKANI - APPLICANT/ RESPONDENT AND 1. THE CHAIRMAN/CHIEF EXECUTIVE, NATIONAL DRUG LAW ENFORCEMENT AGENCY 2. NATIONAL DRUG LAW ENFORCEMENT AGENCY RESPONDENTS/ (NDLEA) APPLICANTS 3. DIRECTOR-GENERAL/SECRETARY, NATIONAL DRUG LAW ENFORCEMENT AGENCY (NDLEA) REPRESENTATION J.M. Abu for Applicant/Respondent. J.N.Sunday (Director Prosecution & Legal services), with Abu Ibrahim (Asst Chief LegalOfficer) for Respondents/Applicants. RULING This is a Preliminary Objection filed by the respondents/applicants on 13th May 2015 pursuant to Order 11 Rule 1 (1) Of the National Industrial Court Rules 2007 and the inherent jurisdiction Of the Court praying for the following: 1. An order of this Honourable Court setting aside the Ex-parte Order made and the reliefs granted by this Honourable Court in respect of this Suit on the 27th April 2015. 2. An order of this Honourable Court to the effect that the Suit as presently constituted is incompetent and that this Honourable Court lacks jurisdiction to hear and determine same. 3. An order of this Honourable Court striking out of the name of the 3rd respondent from this Suit. 4. And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances. The grounds upon which this application is predicated are as follows: (i) That the Ex-parte Order was made and the reliefs granted upon the misconception that the suspension of the Applicant/Respondent was a judicial or quasi-judicial act. (ii) That the suspension of the respondent was by the 1st applicant acting in his execution capacity as the Chairman/Chief Executive of the 2nd respondent. (iii) That the suit is an abuse of court process. (iv) That the 3rd respondent is not a juristic personality. The objection is supported by an affidavit sworn to by Kareem M.Olayinka, litigation officer to which is annexed two exhibits and a written address. In opposing the objection, the applicant/respondent filed a written address dated 1st June 2015 and filed the same day. The parties adopted their written addresses. Learned counsel to the respondents/applicants formulated one issue for determination as follows: Whether in light of the facts and circumstances of this case, this Honourable Court has the jurisdiction to hear and determine the present Suit as constituted as to have enabled it grant the reliefs in the Ex-parte Order made on the 27th April 2015. He submitted that the suspension of the applicant/respondent was not a judicial or quasi-judicial act but merely an Administrative/Executive act which is not subject to judicial review of the court. He further submitted that the prerogative writs of certiorari and prohibition would not lie against the respondents/applicants and that the ex parte order made in that respect was made without jurisdiction. He cited Egbaniwe v Federal Government of Nigeria [2010] 2 NWLR (Pt. 1178) 348 at 359 Paras D-E, Nwaoboshi v Military Administrator, Delta State Exparte Onwuachi [2003] 11 NWLR (Pt. 831) 305 at 318 Paras D-H, and The Hon. Justice Adebayo Manuwa v N.J.C & Anor [2013] 2 NWLR (Pt. 1337) 1 at 26-27. Learned counsel submitted that the applicant/respondent’s suit as presently constituted is an abuse of Court process. He stated that an abuse of court process in general terms applies to proceedings wanting in bonafide, vexatious, oppressive; and is an improper use of the legal process citing Seven Up Bottling Company Ltd v Abiola and Sons Bottling Co. Ltd [1996] 7 NWLR (Pt. 463) 714; Saraki v Kotoye [1992] 9 NWLR (Pt. 264) Pg. 156. He submitted that it constitutes an abuse of the process of Court for the applicant to file a notice of discontinuance so that he may have his way in a new suit as in the instant case. He referred to paragraph 5 (v) – (viii) of the affidavit and Olawole v Olarenwaju [1998] 1 NWLR (Pt. 534) at Pg. 455, Arubo v Aiyeleru [1993] 3 NWLR (Pt. 280) Pg. 131. It was learned counsel’s submission that a court of law can only exercise jurisdiction when the parties before it are juristic persons that can sue and be sued and this constitute a condition precedent to the exercise of Court’s jurisdiction. He argued that the 3rd respondent/applicant is not a juristic person and therefore the suit is incompetent and the court lacks jurisdiction to hear and determine same citing Fawehinmi v NBA (No. 2) [1989] 2 NWLR (Pt. 105) Pg. 558 at 595; Management Enterprises Ltd v Otusanya [1987] 4 SC 367; Shitta & Ors v Ligali & Ors [1941] 16 NLR 23; Agbonniagbe Bank Ltd v General Manager G.B. Olivant & Anor [1961] All NLR 116. He further argued that this is not a misnomer which can be amended citing Emecheta v Ogueri [1996] 5 NWLR (Pt. 447) Pg. 228; [1998] 3 NWLR (Pt. 542) Page 456. He urged the court to grant their prayers. In response, learned counsel to the applicant/respondent submitted one issue for determination as follows: Whether, in the circumstances of this case, this Honourable Court can set aside its Ex-parte Order and decline jurisdiction to hear and determine this suit. He submitted that the issue raised by the respondents/applicants that the suspension of the applicant/respondent by them was not a judicial or quasi-judicial act but an administrative/executive act, is the same issue raised in their written address in opposition to the originating motion. He submitted that the court is being invited to determine an issue that has been raised in the substantive case at an interlocutory stage, as deciding whether or not the respondents act of suspending the applicant is administrative/executive would amount to deciding the merit of the case citing S.S (Nig) Ltd v A.S (Nig) Ltd [2011] 4 NWLR 596 at 617. It was his contention that assuming but not conceding that the court can even proceed to consider this issue of law raised by the respondents, it cannot be a ground to set aside the ex parte order made. That the grounds upon which a court can set aside its own order has been stated by the Supreme Court in A.T Ltd v ADH Ltd [2007] 15 NWLR (Pt. 1056) 118 at 183, Paras C-E. Counsel argued that there is nothing before the court to warrant the setting aside of the Ex-parte order which was rightly granted on the 27th April 2015 pursuant to the inherent powers of the court in Section 6 (6)(b) of the 1999 Constitution (as amended). That where the court is competent to make an order but made it wrongly or erroneously, it cannot set it aside because the remedy lies in an appeal citing Adeyemi-Bero v LSDPC [2013] 8 NWLR (Pt. 1356) 238. He argued that the ex parte order was not obtained fraudulently or by deceit, neither does the court lack the power to make an interim order for the maintenance of status quo ante bellum. He submitted that to sustain a charge of abuse of process there must co-exist a multiplicity of suits between the same opponents on the same subject matter and on the same issues citing Umeh v Iwu [2008] 8 NWLR (Pt. 1089) 225 at 24 Ogoejeofo v Ogojeofo [2006] 3 NWLR (Pt. 966) 205, Okafor v Attorney-General of Anambra State [1991] 6 NWLR (Pt. 200) 659, Aruko v Aiyeleru [1993] 3 NWLR (Pt. 280) 126, Okorodudu v Okoromadu [1977] 3 SC 21. That Exhibit NDLEA 1 attached to the affidavit in support of the objection shows that the Suit No. NICN/L/351/13 is a court process for the commencement of committal proceedings which has been discontinued by a notice of discontinuance dated 22nd of April 2015 while the present suit is seeking a judicial review of the respondents’ act. Counsel submitted that the issues in the two suits are different and that there is no abuse of the process of court. He cited SV. Scheep v MV. “S.araz” [2000] 15 NWLR (Pt. 691) 622 at 664 - 665, Paras. C-C. On the issue raised that the 3rd respondent is not a juristic person, learned counsel submitted that Section 5 (2) & (4) of the National Drug Law Enforcement Agency (NDLEA) Act Cap. N30 LFN 2004 created the office of the 3rd respondent in this suit. He argued that the 3rd respondent acted along with the 1st and 2nd respondents by authoring the letter dated 16th February 2015 in breach of the provisions of Section 36 of the Constitution that guarantees the applicant’s right to fair hearing and in excess of jurisdiction. Therefore the 3rd respondent can be sued for the breach of the applicants’ right citing Garba v University of Maiduguri [1986] 1 NWLR (Pt. 17) 550, Carelen (Nig) Ltd v Unijos [1994] 1 NWLR (Pt. 323) 631 at 656, Paras. D-H, Abia State University v Anyaibe [1996] 3 NWLR (Pt 439) 646 at 662 – 663. That if the Court finds that the 3rd respondent ought not to have been joined as a party, the appropriate order the court will make is to strike out the name of the 3rd respondent, as the suit is competent as against the 1st and 2nd respondents. Having carefully considered the submissions of counsel to the parties, the question that arises is whether the respondents/applicants have put before the court any compelling reasons to warrant the setting aside of the Ex parte order made on the 27th April 2015. The applicant/respondent has approached this court by way of Judicial Review of the actions taken by the respondents against him. To briefly state the facts placed before the court, the applicant alleges that the respondents by a letter dated 16th February 2015 suspended him from duty without remuneration pending the outcome of the fundamental rights case he instituted. He alleged that he was not given a hearing before he was suspended and the respondents/applicants decision affects his right of access to court and is in breach of his right to fair hearing. The respondents in their supporting affidavit have simply told the court that the suspension of the applicant is merely an administrative/executive act and that the prerogative writs do not lie against such acts without more. This is a question of law to be determined in the substantive action and not at this interlocutory stage. The law is trite that the court should not attempt to go into the merit of the issues in controversy at an interlocutory stage so as not to determine the same issues that would arise for determination in the substantive suit. I therefore hold that he respondents/applicants have not given any reason to warrant the setting aside of the Ex Parte order directing them to maintain the status quo ante bellum as at 15th February 2015. On the issue that this suit is an abuse of the process of court, there is no evidence that there is pending in this court or any other court a multiplicity of suits instituted by the applicant/respondent against the respondents/applicants. The respondents/applicants have not controverted the fact that the contempt proceedings instituted against them in Suit No: NICN/LA/351/13 has been discontinued and that the applicant/respondent is left with this suit only. This is clearly indicative of lack of intention to irritate, annoy and harass the respondents/applicants by instituting a multiplicity of actions. This suit is therefore not an abuse of the process. On whether the 3rd respondent/applicant is a juristic person, Section 5 (2) & (4) of the NDLEA Act Cap. N30 LFN 2004 provides as follows: (2) There shall be appointed for the Agency, a Secretary whose rank shall be equivalent to that of Director-General in the Civil Service of the Federation and who shall be appointed by the President. (4) The Secretary shall be responsible for the administration of the Secretariat, keep the books and records of the Agency and shall be subject to the supervision and control of the Chairman and the Agency. The 3rd respondent as the Secretary for the Agency is a juristic person. The Secretary signed the letter dated 16th February 2015 and is a necessary party to this action. This objection lacks merit and is hereby dismissed in its entirety. I make no order as to costs. Ruling is entered accordingly. ------------------------------------------- Hon Justice O.A.Obaseki-Osaghae