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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: September 27, 2011 SUIT NO. NIC/LA/15/2009 BETWEEN 1. Engr. Femi Omokungbe ] 2. Oladeinde Ogundipe ]... Claimants/Applicants 3. James Alabi ] AND 1. The Governing Council, Yaba College of Technology ]… Defendants/Respondents 2. The Rector, Yaba College of Technology ] REPRESENTATION A. G. Adegbenjo, for the claimants and with him is Mrs. N. R. Okoli. I. A. Kokumo, for the respondents and with him is Isaac Oladapo. RULING This is a motion on notice dated 25th February, 2010 brought by the claimants pursuant to section 18 of the National Industrial Court Act 2006, Order 11(i) and Order 14 Rule 1(i) of the National Industrial Court Rules 2007 and under the inherent jurisdiction of this court praying for an order: (1) Pending the determination of this suit, setting aside the defendants’ letters dated 18th day of September 2009 purporting to terminate the appointment of the claimants; (2) Restoring the claimants and each of them to the respective rights, offices, privileges and emoluments to which they were and by their respective offices entitled; (3) Restraining the defendants, their servants, and or agents from in any way interfering with the claimants’ aforesaid rights, duties and privileges and emoluments to which they were and are by their respective offices entitled. The motion is supported by a 63-paragraphed affidavit sworn to by the 1st claimant/applicant. Attached to the said affidavit are exhibits F01 – F015. Also is a further and better affidavit of 14 paragraphs sworn to by the 2nd claimant/applicant; and attached to this further and better affidavit are Exhibits 001, 002 and 003. The facts of this case are that following an industrial dispute between the claimants/applicants’ union and the defendants/respondents, the claimants instituted this action on the 7th May, 2009 claiming the following reliefs:- (i) A declaration that the collective decision and action by the union and its Executive members on an industrial action on the 5th September 2008 does not constitute gross misconduct. (ii) A declaration that the three queries issued on the same day by the defendants to the claimants amount to victimization, high handedness, witch-hunt and calculated attempt to suppress the union. (iii) A declaration that the purported suspension of the claimants who are union members as a result of their union activities is null and void and, therefore, a nullity and of no effect whatsoever. (iv) An order of court mandating the defendants to expunge the queries from the claimants’ files. (v) An order of court compelling the defendants to pay to the claimants all their outstanding salary arrears and other emoluments which the defendants had illegally stopped for no reason whatsoever. (vi) An order of perpetual injunction restraining the defendants from interfering in the claimants’ duties in the college or victimizing, witch-hunting or embarking on any disciplinary action against the claimants as a result of their union activities or anything whatsoever. In their written address dated 9th March 2011 but filed on 10th March 2011, the claimants raised two issues for determination as follows:- (i) Whether this court ought not to nullify and set aside the defendants’ pre-emptive action purporting to remove the claimants from office on the 18th day of September 2009 notwithstanding the fact that it was fully aware of the pendency before this court, of the claimants’ action. (ii) Whether having regard to the pleadings and the affidavit evidence before this court, the claimants’ prayers on this application ought to be granted. The claimants submitted that the purported termination of the employment of the claimants whilst this court is seized of a valid cause of action was an exercise in futility because the jurisdiction and power of this court to hear and determine causes and matters lawfully assigned to it was through the powers derived from section 6 of the Constitution of the Federal Republic of Nigeria. That the Supreme Court in dealing with a situation in which a party had pre-empted or frustrated the exercise of the legitimate jurisdiction of the Court of Appeal, showed disapproval of such conduct in Governor of Lagos State v. Ojukwu [1986] 1 NWLR 621 at 634 especially at 636 as follows: Another very important matter emanating from the act of the applicants. They have no right to take the matter into their own hands once the court was seized of it. The essence of rule of law is that it should never operate under the rule of force or fear. To use force to effect an act and while under the marshal of that force, seek the court’s equality, is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. It must never be. Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of the intention to preempt the decision of the court. The courts expect the utmost respect of the law from the government itself which rules by the law. The claimants further submitted that even if the defendants had power under the Constitution, the 1st defendant being a creature of statute can only exercise power given by the law establishing it, and any powers purportedly exercised by it beyond that allowed to it by Parliament would be null and void. The claimants also contended that the irony of the situation was that it was the defendants which had successfully submitted to the High Court that it was only this court that had jurisdiction to hear and determine the dispute between the parties herein when the claimants accepting the correctness of the contention before the Lagos High Court, filed its present action, which the defendants immediately thereafter took steps to pre-empt and render nugatory the exercise by this very same court of the same jurisdiction contended for it by the defendants before the Lagos High Court. To the claimants, it must surely be a sad day for this country that those public officials entrusted with the management and responsibility for the administration of tertiary education institutions in this country should behave in this irresponsible cynical way in the administration of duty made by the law making authority for the smooth administration of justice in this country. That there is no need for citation of authority to say that the court of this country will never allow a party to litigation to take complete or any control of the manner in which responsibility for the administration of justice is entrusted to the law court. Also, that it needs no citation of authority that the court will nullify any attempt by any individual no matter how highly placed to usurp or frustrate the undoubted power of the court of justice to administer and ensure the proper execution of the law fully made under the authority of parliament. Continuing, the claimants contended that the defendants did not comply with the mandatory procedures laid down for the removal or suspension of staff by the Federal Polytechnic Staff Manual, by purporting to dismiss the claimants as provided for by section 17(1) of the Federal Polytechnic Act. The claimants, therefore, submitted that on these additional grounds, the purported dismissal of the claimants is void for failure to comply with mandatory pre-conditions for dismissal of employees, citing Olaniyan v. University of Lagos [1985] All NLR 363. To the claimants, as a matter of fact and law there are clear mandatory provisions of the law governing the decision of the Council to apply disciplinary measures to the Academic Staff of the Yaba College of Technology, referring the court to paragraph 39 of the claimants’ affidavit sworn to on the 25th of February 2010 in support of this application for an order of interlocutory relief in respect of the claim herein. The claimants then submitted that the defendants did not comply with the condition precedents for their removal by the 1st defendant council. That it is trite law that failure to comply with the relevant statutory condition for the removal of an employee renders such purported removal null and void, citing Olaniyan v. University of Lagos (supra). The claimants, therefore, submitted that as a matter of law, their purported removal by the 1st defendant is a nullity, and urged this court to make the appropriate order for the reliefs sought and order the defendants’ council to pay all the financial benefits due to the claimants forthwith. The claimants also urged this court to order that their withheld benefits be paid with interest at 10% per annum from the date the benefits were withheld till the date of their actual restoration to their respective offices. In opposing the application, the defendants responded by filing a five-paragraphed counter-affidavit deposed to by Olaolu Ogbeyemi a Litigation Officer in the Law Firm of the defendants’ counsel. The defendants also filed a written address dated 28th April 2011 but filed on 3rd May, 2011 wherein the defendants raised one issue for determination which is, whether at this stage of the proceedings, the court can grant all or any of the prayers sought on the motion paper. In arguing the said issue, the defendants relied on the counter-affidavit and the exhibits attached thereto and submitted that the affidavit in support and the further and better affidavit filed by the claimants do not contain facts relevant to any of the prayers sought or why this court should grant the prayers. That some of the facts deposed are irrelevant to the consideration of this application. To the defendants, the powers of this court to grant injunctive prayers though not in doubt, these powers are however discretionary. That in the exercise of these powers the court is enjoined to exercise its discretion judicially and judiciously bearing in mind the facts of each case. The defendants submitted that all the reliefs sought by the claimants as canvassed by their counsel in the written address are issues to be decided at the trial not at this stage of the proceedings. That Lord Diplock had rightly stated in American Cynamid Co. v. Ethicon Ltd [1975] 1 All ER 504 at 510 para D as follows:- It is no part of the courts’ function while hearing the interlocutory application to try to resolve conflicts of evidence on affidavits as to facts on which the claim of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration, these are matters to be dealt with at the trial. The defendants’ counsel also referred to Nigerian Civil Service Union v. Essien [1985] 3 NWLR (Pt. 12) 306 and Onyeshoh v. Nnebedum [1992] 3 SCNJ 129 where the Supreme Court clearly stated that a Judge determining an application for injunction must be careful not to decide the substantive and live issues between the parties. That the first prayer the claimants are seeking is for an order to set aside the defendants’ letter of 18th September, 2009 terminating the appointment of the claimants. The defendants then posed the question: can the court set aside the letter without hearing parties on the merit whether the exercise of the defendants’ power to terminate the appointment of the claimants was lawfully exercised under the Federal Polytechnic Act? Will it not amount to taking a final decision at the interlocutory stage because the court is being called upon to presume that the exercise of this power even without a hearing on the merit is unlawful and or wrongful merely because this suit is pending before the Court? The defendants’ counsel submitted that the exercise of the powers to terminate the claimants can only give rise to a fresh cause of action and the claimants if dissatisfied are at liberty to institute an action before this same court. That a cause of action has been defined by the Supreme Court in the case of Savage & ors v. Uwechia [1972] 1 All NLR (Pt. 1) 251 at 257 where Fatai-Williams, JSC (as he then was) said: A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is in effect the fact or combination of facts, which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant and the consequent damage. Continuing, the defendants contended that the course of action opened to the claimants if aggrieved by the action of the defendants is to institute an action in court to challenge the action of the defendants. To the defendants, master-servant relationship is a two-way relationship and the question should be that if the claimants during the pendency of this suit all decide to resign their appointment, can the defendants file an application to restrain them from doing so when the right to voluntarily leave the service of an employer is vested in the claimants? That in the same vein, the 1st defendant has the power to terminate any member of staff for good cause and if such is done then the claimants must file an action to challenge it. That validity or otherwise of the termination cannot be determined at this interlocutory stage of the proceedings. On the second prayer that each of the claimants be restored to their respective rights, offices, privileges and emoluments to which they were and are by their respective offices entitled is clearly preemptory of the decision that this court will reach at the end of the day. That in fact it is based on the erroneous impression that their case will succeed at the end of the day. The defendants further submitted that this is the same order the court will make at the end of the day if the claims of the claimants succeed. That if the court makes this order now particularly as regards their emoluments would the court also make an order that they refund the money if their case fails at the end of the day? To the defendants, this is an issue to be decided at the substantive stage after the applicants must have established their case. That the same argument goes for the third prayer. Also that the 2nd and 3rd prayers on the motion paper are consequential prayers to be granted after the successful prosecution of the case and not at this stage of the case. That it is even more ridiculous that the applicants are asking for interest on their unpaid salaries as if the case has been decided in their favour. The defendants further submitted that the cases of Governor of Lagos State v. Ojukwu and Olaniyan v. University of Lagos (all supra) are irrelevant to the present circumstances of this case. That the defendants have acted with legal justification under section 17(2) of the Federal Polytechnic Act, and so the course of action opened to the applicants is to challenge the exercise of the power if they feel aggrieved. To the defendants, besides, the exercise of the power by the defendants terminating the applicants is not an issue or one of the issues submitted for adjudication before the court in this case and so the defendants cannot be said to have acted in disregard or disrespect to this court. That the facts leading to this case have been correctly stated by the defendants in their counter-affidavit, and these facts have not been denied or controverted by the applicants even in their further and better affidavit. They are, therefore, deemed to be admitted. To the defendants, all the applicants have been on suspension before the institution of this case and before the order of status quo made by Hon. Justice Alogba of the Lagos High Court in Suit No. ID/1516/2008 which case was eventually struck out on the 17th of September, 2009. The defendants then urged the court to dismiss this application as lacking in merit and clearly intended to waste the precious time of the court. In reply on points of law, the claimants submitted that the core basis of their claim against the defendants both before the State High Court and in this court remained the same, that is – (a) That their conditions including disciplinary matters were regulated by statute which imposed strict disciplinary procedures upon the employers wishing to take disciplinary action against its staff. (b) Immunity of employees from victimization on account of trade union activities. The claimants, therefore, submitted and urged this court to hold that – (i) The claimants acted at all times material here bona fide as officers and respresentatives of a trade union duly recognized as such by the respondents – a feat not denied by the respondents. (ii) The facts show unequivocally that the claimants succeeded in their struggle to achieve financial and other benefits for their co-workers and themselves. The claimants, therefore, prayed this court to make all and every order as would restore to the individual employees of the defendants as well as to their union as a whole, those rights to which they are entitled under the laws of the land with substantial cost in their favour. We have carefully considered the submissions of the parties and the authorities cited along with the attached exhibits. The claimants’ application before this court is for setting aside the letters of termination dated 18th September 2009 purporting to terminate their appointments and to restore the claimants to their respective rights, offices, privileges and emoluments they enjoyed before the purported termination of their appointments. The claimant argued that because the said termination of the claimant was done while this court was seized with the matter, the court should at this stage nullify the said actions of the defendants. The defendants on the other hand argued that although the powers of this court to grant injunctive prayers is not in doubt, these powers are however discretionary. The defendants, therefore, contended that the reliefs sought by the claimants are issues to be decided at the trial and not at this preliminary stage of the proceedings. An evaluation of the case of the claimants reveals that the claimants approached this court seeking the court to set aside their purported suspension by the defendants, but before hearing could commence the claimants’ employments were terminated by the defendants. It is in that regard that the claimants brought this application which the defendants oppose. It is not in dispute that the application before this court is by its very nature an interlocutory one. The claimants are asking this court for orders which if granted have the capacity to answer the substantive claims and hence render the substantive suit inconsequential. In Odutola Holding Ltd v. Ladejobi [2006] 12 NWLR (Pt. 994) 321, the Supreme Court held that: It is the duty of a trial court, or all courts for that matter, when dealing with interlocutory matters, to avoid making statements giving the impression that it has made up its mind on the substantive issue before it. Courts should desist from making positive pronouncements on substantive matters pending before them while dealing with interlocutory applications as the practice prejudges the real matter in controversy. Therefore, care should be taken when a court is hearing an interlocutory application to avoid making any observations, comment or pronouncement in its ruling on that application which may appear to prejudge the main issue in the proceedings relative to the interlocutory application. In Duwin Pharmaceutical & Chemical Co Ltd v. Beneks Pharmaceutical & Cosmetics Ltd & 2 ors [2008] Vol. 33 NSCQLR 239 at 276, the Supreme Court held – At the stage of an application for interlocutory injunction pending the determination of the substantive suit, the only evidence is the incomplete untested affidavit evidence and a court should, at the stage, refrain from making pronouncements on issues to be decided in the substantive suit. Otherwise, it will fall into the unhealthy situation of deciding the issue twice, first at the interlocutory application and then in the ultimate decision at the end of the trial. Such a procedure will be prejudicial to the fair trial of the substantive case. Also in Iwara v. Itam [2009] 17 NWLR (Pt. 1170) 337 at 377, the Court of Appeal restated that it is an established principle of law that a court should not unwittingly decide a substantive case at the interlocutory stage. In other words, that a court must refrain from making an order which has the effect of deciding the substantive issues or reliefs in a case while hearing an interlocutory application. See also Lexington International Insurance Co. Ltd v. Sola Holding Ltd [2006] 7 NWLR (Pt. 216) 124, University Press Ltd v. Martins (Nig.) Ltd [2000] 4 NWLR (Pt. 654) 584, Bio con v. Kudu Holdings Ltd [2000] 4 NWLR (Pt. 691) 493, UBA v. Immarches (Nig.) Ltd [2003] 6 NWLR (Pt. 817) 529, W.A.A. Co. Ltd v. Akinsefe [1999] 13 NWLR (Pt. 636) 600, Adenuga v. Odumeru [2003] 8 NWLR (Pt. 821) 163 and Okeke v. Okoli [2000] 1 NWLR (Pt. 642) 641. In the instant case, granting the claimants’ reliefs at this stage of the proceeding is capable of prejudging the substantive issues in dispute between the parties as the court is yet to hear the case of the parties on merit to be able to decide one way or the other. It is, therefore, our considered view that this application is premature and is hereby refused. The matter shall according proceed to hearing. Ruling is entered accordingly. We make no order as to cost. …………………………… Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice O. A. Obaseki-Osaghae Judge Hon. Justice J. T. Agbadu-Fishim Judge