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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN IN ABUJA BEFORE HIS LORDSHIP, Hon. Justice B.A. Adejumo, OFR…………………………………………….President Date: 21st May, 2012 SUIT NO. NIC/ABJ/14/2012 BETWEEN: MR. PETER M. CHIGBO…….………………..……………………………..CLAIMANT/APPLICANT AND ENERGY COMMISSION OF NIGERIA & 4 ORS……………DEFENDANTS/RESPONDENTS REPRESENTATION: 1. A.B. Anachebe, SAN with him Professor Bob. C. Ogu; F.C. Anachebe (Mrs); Charles Jibaku; Shareef Mohammed and Okereke (Miss) for Claimant/Applicant; 2. M.U. Ibrahim with him C. Agwu and A. Zakare appeared for the 1st & 2nd Defendants/Respondents; and 3. I.P. Hamman appeared for the 4th Defendant/Respondent. RULING This action was commenced by the Claimant against the Defendants by way of a Complaint filed on 26th January, 2012. Filed along with the Complaint were Statement of Claim, Claimant’s Witness Statement on Oath, List of Documents to be relied upon, List of Witnesses, Certificate of Pre-action Counseling and sundry Exhibits. The reliefs sought by the Claimant/Applicant are as stated in the Complaint. On 14th of February, 2012, the 4th Defendant herein filed a Memorandum of Conditional Appearance dated 8th February, 2012. The 1st & 2nd Defendants/Respondents similarly filed a joint Memorandum of Conditional Appearance on 20th February 2012. In the present circumstances, it is needless for me to make reference to the Notice of Preliminary Objection and the accompanying Written Address filed by the 2nd Defendant/Respondent since same has been withdrawn and appropriately struck out. It is noteworthy that the 1st & 2nd Respondents filed their joint Statement of Defence along with List of Witnesses, List of Exhibits, Witnesses’ Depositions on Oath, Exhibits and other documents on 20th February, 2012. Of particular importance was the Claimant/Applicant’s Motion on Notice dated 17th February, 2012 along with a 13-paragraph supporting affidavit filed on 21st February, 2012. Accompanying the Motion on Notice are Exhibits A – G. The Claimant/Applicant’s Written Address in support of the Motion for Mandatory Injunction was also filed on 21st February, 2012. The relief sought by the Claimant/Applicant is couched in the following words: AN ORDER OF MANDATORY INJUNCTION compelling the Respondents to restore the Claimant to his position and office as Acting Director/Deputy Director in the 1st Respondent, together with all entitlement and benefits accruing to the said office; PENDING THE DETERMINATION OF THIS SUIT. Let me also take the liberty to reproduce the five grounds upon which the application is predicated: i. The Claimant was Acting Director cum Deputy Director in the statutory employment of the 1st Respondent, while the Respondents are agents or agencies of the Federal Government and the Public Service of the Federation. ii. The Claimant was purportedly suspended from office for three months from 12.9.2011, whereupon he filed an Originating Summons at the Federal High Court in Suit NO: FHC/ABJ/CS/997/2011, challenging his suspension and seeking to forestall his dismissal or termination by the Respondents. iii. The said Federal High Court originating processes were served on the Respondents twice, first on 9.12.2011 with advance copies and formally re-served on 22.12.2011 both by the Bailiffs of the said court. iv. Without affording the Honourable Court an opportunity to adjudicate on the suit, the 1st, 2nd & 3rd Respondents by letter of 30th December 2011 purportedly dismissed the Claimant, in brazen affront and utter contempt of the authority of the Honourable Court. v. The action of the Respondents in dismissing the Claimant during the pendency of the said Suit is an infraction of the Claimant’s right to fair hearing before a Court of law as it also gravely undermines the authority and adjudicatory powers of every court, as constitutionally guaranteed. On the 23rd of March, 2012, the 1st & 2nd Respondents filed a Motion on Notice dated 16th March, 2012 by which they seek for an order of the Court extending the time within which they to file their joint Counter-Affidavit and Reply to Claimant’s Motion on Notice; and for an order deeming the Counter-Affidavit and Reply to the Claimant’s Motion on Notice (Exhibits “A” & “B”) as properly filed and served. There are a number of Exhibits attached to the 9-paragraph Counter-Affidavit. The Claimant/Applicant’s Motion on Notice dated 12th February, 2012 and filed on 21st February, 2012 praying for an order of mandatory injunction was heard on 16th April, 2012. A.B. Anachebe, S.A.N. with him,Professor Bob C. Ogu, F. C. Anachebe (Mrs), Charles Jibuaku, Esq., Shareef Mohammed, Esq., and A.C. Okereke (Miss), all appeared for the Claimant/Applicant. The 1st & 2nd Defendants/Respondents were represented by M.U. Ibrahim, Esq. who appeared with C. Agwu. Mr. A. Zakare appeared for the 3rd Defendant/Respondent while I. P. Hamman (PSC) appeared for the 4th Defendant/Respondent. Moving the motion, A. B. Anachebe, SAN, counsel for the Claimant/Applicant submitted that their Motion on Notice seeking for an order of mandatory injunction was dated 17th February, 2012 and filed on 21st February, 2012. He noted that the motion was founded on five grounds (already reproduced above). He further submitted that the Motion on Notice was supported by a 13-paragraph affidavit deposed to by the Claimant herein, and a host of exhibits marked ‘A’ – ‘G’. Counsel sought to place particular reliance on Exhibits ‘D1’ – ‘G’ made up of the originating summons and proof of service filed at the Federal High Court on 9th December, 2011 in respect of the same cause of action and served on the Defendants/Respondents together with the accompanying exhibits, first, on 19th February, 2011 and later on 27th December, 2011. Counsel for the Claimant/Applicant proceeded to adopt the Written Address filed in respect of the Motion on Notice. In his written address, the Claimant/Applicant formulated a lone issue for determination as follows: Having disdainfully dismissed the Claimant during the pendency (and despite full knowledge) of his Suit seeking to forestall same, whether the Claimant is not entitled to Mandatory injunction restoring him to office, pending judicial determination of the substantive cause. Counsel for the Claimant argued that mandatory injunction is equitable and is intended to reverse a completed act or to restore the status quo ante bellum; with a view to preventing a party from stealing a match thereby foisting fait accompli on the other. Counsel drew a distinction between interlocutory and mandatory injunctions. He submitted that interlocutory injunction is targeted at preservation of the res pending litigation while mandatory injunction is targeted at restoration of the status quo by reversing a completed act. On this proposition, Counsel for the Claimant/Applicant cited the case of AG ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (Pt. 224) 396 at 427. On the circumstances guiding the grant of mandatory injunction, Counsel for the Claimant/Applicant submitted that a mandatory injunction would be granted where a party attempts to steal a match during litigation or where the act complained of is in breach of express agreement and cited the case of CBN V. UTB NIG. LTD. (1996) 4 NWLR (PT. 445 P. 694 (Ratio 9) and CBN V. INDUSTRIAL BANK LTD. (1997) 9 NWLR (Pt. 522) p. 712 (Ratio 5). Counsel for the Claimant/Applicant argued that mandatory injunction remains the available remedy to reverse acts done during the pendency of litigation whether or not the litigation has merits. Counsel cited the case of GOVERNOR OF LAGOS STATE V. OJUKWU (supra) and EZEGBU V. FATB LTD. (1992) 1 NWLR (Pt. 220) 669 at 736. Counsel for the Claimant/Applicant submitted that the Claimant’s Suit, FHC/ABJ/CS/977/2011 was still pending at the Federal High Court and the processes duly served on the Defendants/Respondents as at the date of the purported dismissal of the Claimant by a letter dated 30th December, 2011. Counsel submitted that the said Suit was substituted and re-filed in this Court with similar reliefs to forestall or challenge the dismissal of the Claimant. Counsel for the Claimant/Applicant submitted that a determination of the merit of the suit was immaterial to the grant of mandatory injunction. Submitting further on the issue, Counsel noted that the Claimant/Applicant was dismissed during the pendency of the suit which amounted to stealing a match and thereby undermining the constitutionally conferred powers of the court to adjudicate on disputes. Counsel for the Claimant/Applicant contended that the employment of the Claimant has statutory flavour under the Federal Public Service Rules; which is a collective agreement made pursuant to the 1999 Constitution as amended and also section 7(2) of the Energy Commission of Nigeria Act which states that “All staff of the Commission except the Director General shall be officers in the civil service of the Federation”. Counsel cited the cases of IDERIMA V. R.S.C.S.C. (2005) 6 NWLR (Pt. 951) p. 378 at 403 r. 8 and F.M.C. IDO-EKITI V. ALABI (2012) 2 NWLR (Pt. 1285) 411. Finally, Counsel for the Claimant/Applicant submitted that only the restoration of the Claimant/Applicant back to his position as Acting Director/Deputy Director in the 1st Respondent can adequately assuage the Claimant as deposed to in paragraphs 7,9,10,11, and 12 of the affidavit in support of the Motion on Notice just as reinstatement is the appropriate remedy for breach of statutory employment. The case of F.M.C. IDO EKITI V. ALABI (Supra) was cited by Counsel. Counsel for the Claimant submitted that the Court should assert the sanctity of judicial process as per sections 36(1) & 6(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended by granting the prayer(s) sought by the Claimant/Applicant by restoring the Claimant/Applicant back to his position and await the determination of the matter as advised by Counsel to the 1st and 2nd Respondents in Exhibit “G”. On his part, Counsel for the 1st & 2nd Defendants/Respondents orally informed the Court that they had filed a joint Counter-Affidavit and Written Address dated 16th March, 2012 and filed on 23rd March, 2012 already deemed as properly filed and served by an order of the Court. Counsel proceeded to adopt the joint Counter-Affidavit and Written Address. Counsel for the Claimant/Applicant submitted that the injunction been sought by the Applicant is against an already executed act and that the cases cited by learned Counsel for the Claimant/Applicant are not on all fours with the case at hand. Counsel further urged the Court to take cognizance of the processes filed by the Applicant and the date of commencement of the Constitution (Third Alteration) Act, 2010. In their joint Written Address, the 1st & 2nd Defendants/Respondents formulated a lone issue for determination viz: “Whether the Claimant/Applicant is in the circumstance of the case entitled to a mandatory restorative injunction”. Counsel for the 1st & 2nd Defendants/Applicants stated the principles guiding the grant of mandatory injunction to be: a) Whether in the circumstance as they exist after the breach, a mandatory order is appropriate and if so: b) what kind of mandatory order will produce fair result? c) the benefit which the order will confer on the plaintiff and the detriment which it will cause the Defendants. d) a plaintiff should not be deprived of a relief to which he is justly entitled to merely because it would be disadvantageous to the Defendants. e) a plaintiff should not be permitted to insist on a form of relief which will confer no appreciable benefit on himself and will materially be detrimental to the Defendants. On these propositions, Counsel for the 1st & 2nd Respondents cited and relied on the cases of KWANKWASO V. GOVT. OF KANO STATE (2006) 14 NWLR (Pt. 1000) 444 at 467-468 paras. H-D; 470 paras. D-E. and NKPORNWI V. EJIRE & ANOR (2009 9 NWLR (Pt. 1145) 131 at 170 paras. A-E. See also the Supreme Court decision in AG ANAMBRA STATE V. OKAFOR (supra) 396 at 427 paras. A-C. Counsel also submitted that a mandatory injunction may not be the appropriate remedy where the act complained of has already been carried out, even if the act is irregular and cited the case of NKPORNWI V. EJIRE & ANOR (supra) on this proposition. In the light of the guiding principles he has stated above, Counsel for the 1st & 2nd Defendants/Respondents posed the question whether it was proper to grant a mandatory injunction restoring the Claimant back to his position and proceeded to answer the question in the negative; citing several reasons for the answer. Counsel for the 1st & 2nd Respondents contended that the Claimant having antagonized the management of the 1st Defendant/Respondent, his restoration might affect the smooth running of the 1st Respondent. Counsel also posited that restoring the Claimant/Applicant to his position will not be a fair result as according to Counsel, this will mean that every civil servant punished for misconduct will rush to court to seek restoration pending the determination of the suit without any assurance that the affected plaintiff would give his best when restored. Counsel for the 1st & 2nd Respondent submitted that the Claimant/Applicant should not be allowed to eat his cake and have it at the same time since the Claimant voluntarily abandoned his duty post and resisted every entreaty to come back to work. Counsel therefore submitted that restoring the Claimant in the circumstance will be detrimental to the 1st Respondent and the entire civil service. The order sought by the Claimant ought not be granted since according to Counsel for the 1st & 2nd Respondents, a dismissed servant only has his reliefs in benefits/damages but not restoration. On this proposition, Counsel cited the case of P.C.N. UZONDU V. UBN PLC (2009) 5 NWLR (Pt. 1133) 1 paras F-G. Counsel further submitted that the Police Report on investigations conducted to ascertain the veracity of the alleged threats to the life of the Claimant/Applicant showed that the Applicant was involved in various fraudulent activities as a result of which the 1st & 2nd Respondents fear that the mandatory injunction if granted would provide the Claimant opportunity to tidy up his “activities” Counsel also posited that if the Claimant is restored vide a mandatory injunction, whatever he does will become irreversible even if such were detrimental to the interest of the 1st Respondent. On the submission by learned Counsel for the Applicant that the Claimant/Applicant was dismissed during the pendency of a suit filed at the Federal High Court by the Claimant, it was submitted on behalf of the 1st & 2nd Respondents that the Federal High Court had no jurisdiction to entertain the said Suit just as there was no order preventing the Respondents from proceeding to punish the Claimant. Relying on the case of KWAKWASO V. GOVT. OF KANO STATE (supra), Counsel for the 1st & 2nd Respondents posited that in view of the principles guiding the grant of mandatory injunction, restoring the Claimant will occasion irreparable damage to the 1st Respondent and urged the Court to dismiss the application as same is lacking in merit and vexatious. Counsel for the 4th Respondent aligned himself with the totality of the submissions and prayers made by Counsel for the 1st & 2nd Defendants/Respondents. I have considered the issues formulated for determination by the Applicant and the 1st & 2nd Respondents in their respective Written Addresses and came to the conclusion that both are the same in substance. Against this backdrop, the sole issue that has arisen for determination to my mind is: Whether in the circumstances of this case, the Applicant is entitled to the grant of mandatory injunction restoring him back to his position? Mandatory injunction orders an affirmative act or mandates a specified course of action and it is different from a prohibitory injunction which restrains or prohibits an act from been done. As has been canvassed, the principles guiding the grant of mandatory injunction are clear. It is not expedient for me to restate the principles here. See NKPORNWI V. EJIRE & ANOR (supra) 131 at pp. 165-166 paras. F-A. It follows that in appropriate cases, a court of law will grant mandatory order of restorative injunction even where the act in question has been completed. I take the liberty to reproduce for emphasis the passage from the Supreme Court decision in AG ANAMBRA STATE V. OKAFOR (supra) 396 at 427 quoted by the Claimant, thus: Although a mandatory injunction is sometimes classified as an interlocutory order of injunction in that it may be granted upon an interlocutory application, it is a different type of injunction, with its own features, and requiring a consideration of its own distinct principles. It is noteworthy in this respect that it is usually targeted upon a completed act and the order therefore may be made, for an example, to order a building which had been erected to be pulled down if it established that the defendant erected it stealthily in order to steal a match on the plaintiff on having noticed that an injunction was to be taken out against him. The above principle remains an entrenched part of our jurisprudence. Thus, in deserving cases, this Court will order the reversal of an act even if completed upon the basis of clear evidence. I am mindful of the fact that the grant of mandatory injunction being an equitable remedy is discretionary and the court is admonished to proceed with caution. In the case of AG ANAMBRA STATE V. OKAFOR that I have just referred to, the Supreme Court held (at p. 426 paras G-H) that: Since the evolution of mandatory injunctions courts, have always been are still reluctant to issue orders for mandatory injunctions except in very clear cases. The law requires clearest evidence as well as very high standard of proof so as to make sure that at the trial it will still appear that the order of mandatory injunction was rightly made as grave consequences could follow such an order… Still reinforcing the need for a court considering an application for mandatory order of injunction to show some reluctance in granting the said order since it is usually irreversible, the Supreme Court in AG ANAMBRA STATE V. OKAFOR held at pages 419-420 that: It is trite law that an interlocutory order by way of injunction is not a proper remedy for an act which has already been carried out and will not be granted where even the act complained of is irregular. The kernel of the above principles is that unlike an applicant for interlocutory injunction, a higher standard of proof is placed on an applicant for a mandatory injunction. On the other hand, the Court of Appeal in the case of C.B.N. V. U.T.B. (Nig. Ltd.) supra has held that: A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted…such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application. [p. 702 paras. A-B]. The major plank upon which this application is premised is that the Claimant was dismissed during the pendency of an action he had filed at the Federal High Court by which he sought to prevent the Respondents from proceeding to dismiss him. Paragraphs 4,5,6,7,8, & 9 of the affidavit in support are relevant here. The action of the Respondents according to the Claimant amounted to stealing a match. In this regards, let me make the following pertinent observations: First, that based on alleged threats to his life, the Claimant stopped going to the office from about 11th July, 2011 without permission or authorization. Exhibit “COM 2” attached to the Counter-Affidavit and the uncontroverted depositions at paragraph 4 sub-paragraphs (a) & (b) refer. Also the uncontroverted averment at paragraph 4 sub-paragraphs (h) & (j) reveal that the Claimant was invited to several meetings to address the issue of threat to his life but he refused to attend the meetings. Secondly, the Claimant’s suspension for 3 months was conveyed to him vide a letter dated 12th September, 2011 while the Claimant filed his action at the Federal High Court on 9th December, 2011 – few days to the end of his suspension. The Originating processes were however served on the Respondents on 22nd December, 2011. The letter summarily dismissing the Claimant/Applicant was dated 30th December, 2011. Ordinarily, the fact that the suit at the Federal High Court was pending when the Claimant was summarily dismissed should have been a factor militating in favour of granting this application. However, I have taken cognizance of the deposition in paragraph 4(f) of the Counter-Affidavit and its full implications. This deposition shows that the disciplinary record of the Claimant/Applicant is far from impressive. It is also noteworthy that the Claimant/Applicant refused to attend meetings called for the purpose of addressing the issue of threat to his life. These are two germane considerations that evoke some reluctance in the mind of this Court. They are indeed, cautionary signposts! As already noted, a court inclined to granting an order of mandatory injunction is enjoined to be satisfied that at trial, it will appear that the order was properly made. I am persuaded to refuse this application due to the peculiar circumstances of this case, the disciplinary antecedents of the Claimant/Applicant and having regard to the principle of law enunciated by the Supreme Court in AG ANAMBRA STATE V. OKAFOR (supra) that: Since the evolution of mandatory injunctions courts, have always been are still reluctant to issue orders for mandatory injunctions except in very clear cases. The law requires clearest evidence as well as very high standard of proof so as to make sure that at the trial it will still appear that the order of mandatory injunction was rightly made as grave consequences could follow such an order… In sum total, the order sought by the Claimant/Applicant is hereby refused and the application dismissed forthwith. The cases of C.B.N. V. UTB NIG. LTD and C.B.N. V. INDUSTRIAL BANK LTD. cited by Counsel for the Claimant/Applicant are unhelpful as they dealt with instances where monies were wrongfully debited from the accounts of the appellants and the courts in those cases issued mandatory orders of injunction directing the Central Bank of Nigeria to refund the amounts so debited. In arriving at the decision I have adverted my mind to the grave consequences a contrary decision could have on discipline in the civil service. However, this is not to say that this Court will hesitate to issue a mandatory order of injunction against a public institution in a deserving case. …………………………………………………………………. Hon. Justice B. A. Adejumo, OFR President, National Industrial Court of Nigeria