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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Date: January 26, 2016 SUIT NO: NICN /OW/112/2014 Between Mr. Martins Uzoma Dike …….. Claimant/Applicant And Federal University of Technology Owerri & 17 Others …….. Defendants/Respondents Representation E. O. U. Dike (Mrs) for the Claimant/Applicant RULING By a motion on notice filed on 10th day of December 2014, brought pursuant to Order 11 Rules(1) and (8), Order 14 Rules (1) and (2), of the National Industrial Court Rules 2007,the Claimant/Applicant’s counsel sought the following reliefs: 1. AN ORDER of interlocutory injunction restraining the Respondents their agents, assigns, and privies, from further discussing, deliberating, harassing, intimidating, punishing, investigating, or taking any action whatsoever against the Applicant pending the determination of the suit. 2. AN INJUNCTION restraining the Respondents their agents, assigns, and privies, from acting on the recommendations of the different panels set by the Respondent pending the determination of the substantive suit. Supporting this application is a 46-paragraph affidavit deposed to by the Applicant, relied upon in the accompanying written address. One issue was distilled for determination in the same address, thus: “Whether in the circumstance of this case, this Honourable Court possesses the power/jurisdiction to determine this application.” Counsel submitted that by virtue of Order 11 Rules (1) and (8), Order 14 Rules (1) and (2), Order 11 Rule 8, Order 14 Rule 1, Order 14 Rule 2 of the National Industrial Court Rules 2007, this court possesses the prerequisite jurisdiction to determine this application and grant same accordingly. It is trite law that an interlocutory injunction is made to prevent an impending or threatened breach of a legal or equitable right which cannot be adequately compensated in damages. See NWAOSU vs. MIN. OF HOUSING (2005) 11 NWLR (Pt. 937) at 444. According to Counsel, in the instant case giving rise to this application, there is a threat to unlawfully dismiss the Applicant from his employment. She went further that if the court does not intervene and prevent the Defendants from so doing, the estimated damage will be irreparable. This is owing to the fact that the Applicant is the bread winner of his family the damage that may result in the family of the Applicant will not be adequately compensated. The extant application is a preservative measure aimed at preserving the res of this suit until the determination of the substantive suit. See ENUNWA vs. OBIANUKA (2005)11 NWLR (Pt. 735) at 103-104. It is counsel’s further submission that this Application has passed the test required for the grant of an interlocutory injunction. In this respect, counsel stated that there is a legal right which the Applicant is seeking to protect which is his job which he lawfully and statutorily secured. Again, the act which the Applicant is seeking to be restrained has not been completed. Rather, there is a threat by them to do the said act sought to be restrained on the 16th day of December 2014. In the event that the Applicant is unlawfully dismissed from his employment; damages will not be adequate compensation. See NBM BANK LTD vs. OASIS GROUP LTD (2005) 3 NWLR Pt. 912 @ 324. Counsel submitted that the Applicant has undertaken to pay damages to the Respondent if this Application turns out to be frivolous and the balance of convenience is in favour of the Applicant. In conclusion, counsel urged the court to resolve this issue in favour of the Applicant. In opposition, the defendant/respondent filed a counter-affidavit of 25 paragraphs on 13th February 2015, accompanied by a written address in which counsel distilled one issue for determination which is: “Whether the injunctive order sought is one that can be granted having regards to this materials placed before the court”. Counsel argued that the grant or refusal of an application for interlocutory injunction is at the discretion of the court, which discretion is to be exercised judicially and judiciously taking into consideration the peculiar facts and circumstances of the case. These circumstances include the materials placed before the Court by the applicants and the competing interest of parties. See OBEYA MEMORIAL SPECIAL HOSPITAL vs. A-G FEDERATION (1987) 3 NWLR (Pt. 60) at Pg. 325 and COLITO (NIG) LTD vs. DAIBU (2010) 2 NWLR (Pt. 1178) at Pg 266. It is counsel’s contention that a claim for an injunctive order must be supported by evidence. In the absence of evidence it will not be made. In the extant case, the claimant/applicant deposed in his affidavit in support of the motion on notice that the panels set up to terminate his employment had written a report that purportedly recommended to the University Council to terminate his employment and the University Council was going to formalise his termination on the 16th December 2014 based on this report (See paragraph 31-39 of the affidavit in support of motion on notice). Therefore, he brought this application to restrain the defendants/respondents from discussing or taking any action based on the report. Thus, the failure of the applicant to produce the said report, leaving the court to speculate on whether a report has been written recommending the termination of his employment is detrimental to his application. See OGBORU vs. UDUAGHAN (2013) 13 N.W.L.R (Pt. 1370) at Pg. 58.Therefore, having failed to exhibit any material to enable the court judicially and judiciously exercise its discretion in the applicant’s favour, this injunctive order cannot be made. Counsel submitted that one of the principles upon which the Court acts in granting interlocutory injunction is that there must be a legal right which is threatened and capable of being protected by the order sought. See AKAPO vs. HAKEEM (1992) 7 SCNJ Pg. 119 at 137. In the extant application, counsel argued that the claimant/applicant’s deposition that his employment is about to be terminated does not disclose a legal right to be protected because the said report recommending the termination of employment of the claimant/applicant is not before the court. See OBEYA MEMORIAL SPECIALIST HOSPITAL vs. A.G. FEDERATION (Supra). Flowing from the above, the claimant/applicant has not also shown that there is a serious question or substantial issue to be tried. Having not shown these conditions, the claimant/applicant is not entitled to the status quo being maintained. See JOHN HOLT vs. AFRICAN WORKERS UNION OF NIGERIA (1963) 2 S.C.N.L.R. at Pg. 383. Further, in the extant application, the supporting affidavit does not disclose an undertaking as to damages to safeguard against the disadvantages the defendants/respondents would suffer should they succeed at the trial as required by the law. See NIG. CEMENT CO. LTD vs. N.R.C. (1992) 1 N.W.L.R. (Pt. 220) Pg. 747 at 759. In conclusion, counsel urged the Court to dismiss this application. The claimant/applicant filed a further-affidavit of 64 paragraphs on the 9th day of July 2015. In the written address filed alongside, counsel adopted the same issue raised in the initial written address in support of this application. While counsel rehashed most of the arguments in his first address, she enlarged the scope of her arguments by stating that an application for an interlocutory injunction is due when an applicant suspects that his right is about to be infringed upon. Counsel added that the reason underlying this position is that “equity aids the vigilant and not the indolent.” See ADEKOYA vs. SADIPE (2012) All FWLR (Pt. 638) 895 at 898. It is counsel’s contention that the principle enunciated in the above case nullifies the defendant’s point that the applicant’s right has to be violated before an action may be brought. See paragraph 24 of the counter-affidavit. Furthermore, counsel argued that the instant application is one in which the court should exercise its discretion in favour of the applicant. He stated that the grant of this application will do substantial justice to the parties. See UDO vs. I.T.C.M.E.C (2010) All FWLR (Pt.507) 88 at 90 where it was held that the court’s discretion in an application for interlocutory injunction is fettered among other considerations by the need to attain substantial justice. It is the opinion of counsel that Paragraphs 37-48 of the Applicant’s further affidavit show the anomalies contained in the defendants/respondents’ interrogation of the claimant/applicant which are an aberration of the principle of natural justice. Counsel referred the court to the case of OLUFEAGBA vs. ABDULRAHEEM (2010) All FWLR (Pt. 512) 1033 at 1044 where it was held inter alia that Section 15(1) of the University Act provides that an administrative body such as a joint committee of the Council and Senate investigating a matter has the burden of ensuring that a person who may be adversely affected by its decision be informed of the complaints against him to enable him answer. It is counsel’s submission that this principle in the above-cited case was disregarded by the defendants because the Applicant was not informed of the allegation against him. The panel of the defendants did not afford the applicant an opportunity to defend himself. In conclusion, counsel submitted that the applicant has made out a case for a grant of interlocutory injunction by the court and urged the court to grant same. Court’s decision In determining this application, there is need to examine the facts presented by the parties for and against the application. That he was employed by the 1st Respondent on the 9th day of January 2002 as a lecturer in the Department of Environmental Technology. He held the positions of Staff Adviser of the Society of Environmental Technology Student, the coordinator of the Center for Continuing Education of the Department of Environmental Technology, and the Class Adviser of 300 Level Students of the Department of Environmental Technology before the 14th Respondent was appointed the Head of Department sometimes in June/July 2012. But as soon as the 14th respondent was appointed as HOD, she removed the applicant from all the positions he held and also vowed to sack the applicant from the University. In October 2012, the applicant became sick and he wrote to the 1st respondent through the 14th respondent seeking leave to enable him proceed to the hospital for treatment. But the 14th respondent refused to forward the application to appropriate quarters for approval and as a result, the applicant’s received no reply to his application. When his health became worse, his wife had to rush him to St. David’s Hospital and from there to the Federal Medical Center Owerri for further treatment. That he was subsequently given a query by the 14th Respondent and in one of the panels set up against him, the 4th and 9th respondents insisted that the applicant answer the query which he managed to do. The 4th to 9th respondents also set up different panels against the applicant based on the report of the 14th Respondent. The applicant deposed that he submitted copies of his medical report from the Federal Medical Center Owerri to the 1st Respondent through the 14th Respondent. In October 2012, while he was on his sick bed, his salary was stopped by the 1st Respondent at the instruction of the 4th, 9th, 10th and 14th respondents without any explanation. When he went to the 10th respondent to find out why his salary was suspended, the 10th respondent informed him that it was the 9th respondent who gave the instruction that the applicant’s salary be stopped. His effort to see the 9th Respondent was not successful but he was informed by a staff of the 9th respondent’s office that a report was made against the applicant by the 14th respondent and that was the reason for the stoppage of the applicant’s salary. The applicant further deposed that his salary was stopped without following due process and without according him fair hearing. He was also not officially informed of the reason for the stoppage of his salary. In addition to the stoppage of the applicant’s salary, the 10th respondent also refused to pay him his full End Allowance at the instruction of the 14th respondent and the 4th, 9th, and 14th respondents started plotting how to terminate the applicant’s employment. Upon the 14th respondent’s allegations, the 4th and 9th Respondent set up series of panels for the applicant. In all these panels, the claimant said he was not given ample opportunity to defend himself and he had no opportunity to confront the petitioner. The panel was also constituted of persons loyal to the 4th, 5th, 6th and 9th respondents. The applicant stated further that at the moment of his application, the panels have written their reports and the recommendation to the University Council is dismissal of the applicant from the employment. The council of the 1st respondent will meet on the 16th of December 2014 when the panel will summit the reports to council. The applicant said his counsel informed him that it is only this court that has the power to stop the respondent whose action, if not restrained, will cause suffering to his family. In his further affidavit, the applicant deposed to the fact that the 1st respondent’s Council had sat on the report of the panel and was about taking action on the report if not for the interim order of this court. The applicant further averred that the interlocutory injunction he sought in this application is to preserve the res and to protect his legal right which is about to be infringed upon. To him, both the balance of convenience and interest of justice are in his favour and he also undertakes to indemnify the respondents if the application turns out to be frivolous. The Respondents opposed the application and urged this court not to grant the prayers sought in the application. In the Respondents’ Counter Affidavit deposed to by one Cosmos Njoku, a Legal Officer of the 1st Respondent, it is averred that the Applicant was removed as the Coordinator of the Centre for Continuing Education of the Department of Environmental Technology when he failed to compute the 300 level students’ results and the department reassigned the 300 level class to another class adviser who computed the results. The deponent averred further that the applicant did not submit any letter relating to his health through the department but he abandoned his duties. That as a result of acts of nonchalant attitude to work, delay in preparation and submission of results and general dereliction of duty, the applicant was issued a query contained a Memorandum dated 18th September 2012 but the applicant did not react to the said query. The deponent also stated that the submission of duly computed results of courses taught is a condition precedent to payment of salary and because the applicant did not compute the courses taught and did not submit any claim for payment; his salary was suspended in line with the directive of the 1st Respondent’s Senate. The 1st Respondent Management set up an investigative panel to look into the allegations of academic misconduct against the Applicant. The panel looked into the matter and forwarded its report to management. After this, the Council of the 1st Respondent constituted a Joint Council/Senate Senior Staff Disciplinary Committee to further look into the allegations bordering on inability to substantiate his first degree certificate, refusal to answer a query, recommendation for promotion to the rank of Senior Lecturer without a PhD Certificate and his refusal to release results and documents in his custody to the Acting Head of Department, which were preferred against the Applicant. The Joint Council/Senate Staff Disciplinary Committee looked into these allegations, made its findings and recommendations and forwarded the report to the 1st Respondent’s Council for consideration. The report is yet to be considered by the Council. The investigation Panel and Joint Council/Senate Senior Staff Disciplinary Committee invited and interacted with the Applicant in the course of their proceedings, during which process the applicant was given the opportunity to present his case and was fully given a hearing. The deponent concluded that the application should be refused because it is speculative and the applicant has not made out a case for the grant of an order of injunction. The applicant is seeking in this application, an interlocutory injunctive order restraining the Respondents from taking any action against the Applicant and from acting on the recommendations of the panels of investigation pending the determination of the substantive suit. The issue that has come up for determination, in view of the facts of the parties contained in their various affidavits is whether the application should be granted? As submitted by the counsels to the parties in their written addresses, the principles upon which an order for interlocutory injunction is made are as laid down in the cases of OBEYA MEMORIAL HOSPITAL vs. A.G FEDERATION (SUPRA); COLITO (NIG) LTD vs. DAIBU (supra) and NBM BANK LTD vs. OASIS GROUP LTD (supra) cited in the written addresses of the learned counsels. See also KOTOYE vs. CBN (2001) FWLR (Pt. 49) 1567; ADEYEMI vs. OLADAPO (2003) FWLR (Pt. 155) 775; AGBA vs. B.H.I HOLDINGS LTD (1996) 1 NWLR (Pt. 535) 696. The principles are - 1. The applicant must show that he claims a legal right in the subject matter for which protection he needs the injunction. 2. The applicant must show that there is a serious question to be tried at the hearing. 3. The applicant must show that the balance of convenience is on his side or in favour of granting the application. 4. The applicant’s conduct is not reprehensible or that the applicant is not guilty of delay. 5. The applicant makes an undertaking as to damages. 6. Damages will not be adequate compensation for the injury that will result if the order is not granted. I have carefully considered the facts deposed to in the applicant’s affidavit and further affidavits and I find that these requirements have been shown. The claimant is seeking in the substantive suit an order of this court nullifying the constitution of the panels of investigation and their decisions. The basis of the instant application is that the panels, whose constitution he has challenged, have recommended his dismissal from service. In Paragraphs 36 and 37 of his affidavit in support of the motion, the Applicant has deposed to the fact that the report containing the recommendation has been submitted to the 1st Respondent’s Council who is yet to act on it. The Respondents have corroborated this assertion in Paragraphs 21 and 23 of the counter affidavit where it is deposed that the Joint Council/Senate Staff Disciplinary Committee has forwarded its report to the Council for consideration but the report is yet to be considered by the Council. Since no decision has yet been taken on report, I am of the view that it will be proper for every other action to be put on hold until the substantive matter is tried and determined. The grant or refusal of an application for interlocutory injunction by a court depends largely on the discretion of the court. See SARAKI vs. KOTOYE (Supra); IDOKO vs. OGBEIKU (2003) 7 NWLR (Pt. 819) 275. Having gone through all the facts of this application, I find reasons to exercise my discretion in favour of granting this application. In the result, the application is granted. The respondents are hereby restrained from taking any further action against the applicant and from acting on the recommendations of the panels of investigation pending the hearing and determination of the substantive suit. Both parties are to bear their cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge