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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: FEBRUARY 19, 2015 SUIT NO: NICN/LA/257/2013 BETWEEN Mr. Raphael Obasogie - Claimant AND 1. Addax Petroleum Development (Nigeria) Ltd 2. Mr. Cornelis Zegelaar - Defendants REPRESENTATION Olusoji Omole with Lucky Ekarume for the Claimant. H.O. Folawiyo with Dolapo Bolu for the Defendants. RULING The Claimant/Applicant approached this Court on 17/5/13 via a General Form of Complaint and claimed as follows: a. A Declaration that by virtue of the continuous service Seniority of 5 years granted upon his resumption at 1st Defendant which conferred confirmed staff status on the Claimant, there was no provision for application of probationary period to the Claimants employment and consequently there could be no termination under probation of his employment. b. A Declaration that there has been no valid termination of his employment as General Manager Human Resources & Administration of the 1st Defendant in Law as relevant provisions of Nigerian Law and the Production Sharing Contract between the Defendant and NNPC have not been compiled with. c. An Order of Mandatory Injunction on the Defendants by full reinstatement of his engagement as General Manager, Human Resources & Administration of the 1st Defendant directly reporting to the 2nd Defendant and as a member of the Defendants Leadership Team. d. An Order that by virtue of the Claimant’s reinstatement, the Defendants should pay the claimant arrears of his salaries, emoluments, and allowances including bonuses and honorariums from December 2012 to date. e. An order of 500 Million Naira as special and general damages for reputation damage, psychological torture and humiliation and the Costs of the Suit herein be indemnified by the Defendants. The processes filed were accompanied with statement of facts, witness deposition on oath, list of witnesses to be called, Claimant's list of documents and copies of the documents to tender at trial. The Defendants entered a conditional appearance on 8/7/13 and filed their statement of defence dated same date. The defence processes filed included list of witnesses to be called at trial, Defendant's witness statement on oath, list and copies of documents to be relied on at trial. Earlier on 24/10/13, Claimant brought an application pursuant to Order 11 & Order 14, National Industrial Court Rules, 2007 and under the inherent jurisdiction of the Court for the following reliefs - a. An Order for Interlocutory Injunction restraining the Defendants from taking any further step to replace the Claimant as General Manager, Human Resources and Administration of the 2nd Defendants pending the determination of the suit herein. b. An Order for payment of Claimant's due salaries and allowances from December 2012 to date c. Setting for hearing as a preliminary point of law the issue of Defendants' compliance with the provisions of the Production Sharing Contract (PSC) and the Petroleum Act and regulations thereunder; And for such further or other Orders as the Honourable Court may deem fit to make in the circumstances. The application was supported by a 3-paragraph affidavit, 4 exhibits and a written submission. On the 8/7/13, the Defendants filed a 14-paragraph Counter Affidavit, 4 exhibits and a Written Address. Argument both for and against the application was heard on 5/11/14. In his 4-page written address, learned Counsel to the Claimant/Applicant set down the following three issues for determination - 1. Is there a case for Interlocutory Injunction? 2. Are there any outstanding payments due to the Claimants? 3. Can a Point of Law be set down for hearing for an Interlocutory Order? Learned Counsel argued all the issues together. In doing so, Counsel submitted, relying on Adenuga v. Odunewu (2001)2 NWLR (Pt. 696) 184, that an Injunction is an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of specified act. According to Counsel, Interlocutory Injunction serves the purpose of preservation of the status quo of the subject matter of an action. Learned Counsel referred to the principles guiding interlocutory injunction as laid down in Buhari v. Obasanjo (2005)All FWLR (Pt. 273) 1 at 129. According to Counsel, the peculiar fact which makes this case different from all manner of master/servant relationship and making the grant of an interlocutory and mandatory order is the statutory flavour of the Claimant's employment as indicated in the relevant provisions of the legislation made under the Petroleum Act. Citing FMC, Ado-Ekiti & Ors. v. Shuaib Adewole Alabi (2013)31 NLLR (Pt. 89)160, Counsel submitted that a statutory flavoured employment cannot be terminated even though there is a probationary period without recourse to regulations under the Petroleum Act/DPR Regulations. Counsel submitted that there are triable issues in respect of the Claimant who will suffer irreparable damage or injury if his job is given to a third party during the pendency of this suit without due regard to the Contract made with the Defendants who lured the Claimant from a successful career path with a reputable employer like Shell. Counsel urged the Court to grant the prayers sought. In opposition to this application, the Defendants filed a 14-paragraph counter affidavit on 8/7/13. It was titled 'Counter Affidavit to Motion on Notice Dated 24th May 2013'. learned Counsel also filed and relied on a written address dated 8/7/13. The written address was titled 'Written Address in Support of Respondents Counter Affidavit to Motion on Notice Dated 24th May 2013'. In the written address, learned Counsel to the Defendants raised a sole issue for determination as follows- Whether the Applicant is entitled to the grant of the reliefs sought in the instant application. Arguing this lone issue, learned Counsel submitted that the grant of an interlocutory injunction though discretionary it must be exercised judicially and judiciously, citing Ajuwa & Anor. v. SPDC Nig. Limited (2011)12 SC (Pt. IV) 118; that in law the essence of injunctive relief is the preservation of status quo, citing Akapo v. Hakeem (1992)6 NWLR (Pt. 247) 266 at 289 and that the Court will not issue injunctive relief to restrain a completed act and neither will the Court grant injunction which has the effect of altering the status quo, citing Izuagie v. Amud (2006) All FWLR (Pt. 294) 493 at 503 and John Holt Nigeria Limited v. H.A.W.U.N.C (1963)2 SCNLR 383. Counsel submitted that the act sought to be restrained has already been completed and hence nothing to restrain. Learned Counsel referred to paragraph 10 of Defendants Counter Affidavit and submitted that the Applicant has no right which is about to be infringed by the Respondents; that he has ceased to be an employee of the Respondent Company and that another person has been employed in his stead. According to Counsel, while the Applicant asked for injunctive relief, he has not given undertaking as to damages and the means at his disposal or who would guarantee him to be able to meet such an undertaking. Learned Counsel referred to Leasing Co. (Nig.) Limited v. Tiger Industries Limited (2007)14 NWLR (Pt. 318) 346. On whether there are any outstanding payments due to the Claimant, learned Counsel submitted that the Applicant is not entitled to an order for payment of any sum of money as he has not shown any right to payment of salaries from December 2012 till date, citing Ayanru v. Mandilas Limited ( 2007)10 NWLR (Pt. 1043) 462 at 485. On the third issue for determination as set down by the Applicant which is whether a point of law can be set down for hearing for an interlocutory order, learned Counsel submitted that conditions of service which will give statutory flavour to a contract of service cannot be a matter of inference but rather that they must be set out by statute relying on Idoniboye Obu v. NNPC (2003) NWLR (Pt. 805) 589 at 631 and UMTHMB v. Dawa (2001)16 NWLR (Pt. 739) 424. According to Counsel, the issue of whether the Applicant's employment has statutory flavor has no bearing on whether the injunction should be granted or not and that it is not a basis for setting the point of compliance with the provisions of the production sharing contract and the laws down for hearing as a preliminary point of law. Finally, learned Counsel submitted that by his prayers, the Applicant is seeking the determination of the substantive suit at an interlocutory stage. Counsel submitted that trial Courts have been urged to refrain from so doing by the apex Court referring to Onyeso v. Nnebedum (1992)3 NWLR (Pt. 229) 315 at 348 and D.P.C.C Limited v. B.P.C. Limited (2008)4 NWLR (Pt. 1077) 376 at 412-413. Counsel urged the Court to dismiss the application as brought. I have read all the processes filed by learned Counsel on either for and against this application. I also reviewed all the exhibits attached to the processes. In addition, I listened with attention and understanding to the oral arguments as canvassed by the learned Counsel to the parties. Having done so, I hold that a lone issue - whether the Applicant has made a sufficient case for the grant of some or all the prayers sought. suffices for the just determination of this case. Before I delve into the resolution of that issue, I am constrained to make a few preliminary comments especially on the processes filed by either side. The first prayer of the Claimant/Applicant is for 'An order of Interlocutory Injunction restraining the Defendants from taking any further step to replace the Claimant as General Manager Human Resources and Administration of the 2nd Defendants pending the determination of the suit herein'. Now the 2nd Defendant is Mr. Cornelis Zegelaar who was described, albeit, in the passing in paragraph 4 of the Statement of Facts as Managing Director. Was the Claimant/Applicant General Manager Human Resources and Administration of the 2nd Defendant or of the 1st Defendant? Should this order of Interlocutory Injunction have been sought against the 1st or the 2nd Defendant or both? Secondly, the Affidavit in support of the Motion on Notice dated 15/5/13 was deposed to by one Chiedu Gwam. He is not the Claimant/Applicant. Yet some of the depositions were made as if he was the Applicant. See for instance Paragraphs 1(D) and 2(B) of the said Affidavit. Finally, the three and half page written address of the Claimant/Applicant is not only scanty but watery. Counsel merely quoted portions of judgments of appellate courts without bringing to bear the application of those principles quoted to the facts and circumstances of the case for the Applicant. Learned Counsel therefore left it to the Court to make sense out of the appellate decisions cited in relation the case on hand. This, I dare say, is a bad example of advocacy. Thirdly, learned Counsel to the Respondents filed a Counter Affidavit as well as written address. Both processes were filed in reaction ''...to Motion on Notice Dated 24th May 2013''. There was no Motion on Notice dated 24/5/13 in this case. The present Application being argued was dated 15/5/13. The Court had a choice to discountenance both processes having referred to a non-existing Motion. I however, in the overriding interest of justice regarded such error as a pardonable misnomer so as to do substantial justice. After all the era of technical justice has long disappeared. The bottom line of this remark is the imperative of learned Counsel being diligent especially as regards processes filed in a cause or matter before the Court. The Bar has the duty to raise the standard of advocacy as well as the quality of the output from the Bench. The first relief sought by the Claimant/Applicant is of an order for Interlocutory Injunction restraining the Defendants from taking any further step to replace the Claimant as General Manager Human Resources and Administration of the 2nd Defendants pending the determination of the suit herein. The law is trite that an order of injunction will issue only in respect of an uncompleted act and solely for the protection of the res. Where therefore the act sought to be restrained is already completed then there is no res to be protected. See John Holt Nigeria Limited v. HAWUNC (1963)2 SCNLR 383 & UTB Limited & Ors. v. Dolmetsch Pharmacy Nigeria Limited (2007) LPELR-3413(SC). To therefore still issue an order of interlocutory injunction in such a circumstance will tantamount to effort if futility. Now in the Counter Affidavit dated 8/7/13 and deposed to by one Miss Adaeze Ani, paragraph 12 of same is to the effect that the position of General Manager, Human Resources and Administration was offered to one Mrs. Omayuli Wale-Ajayi by a letter dated 19/3/13; that same was accepted on 22/3/13 and that the said Mrs. Omayuli Wale-Ajayi has since resumed work on 17/6/13. There is no further affidavit to contradict this averment. The law is trite that where an affidavit evidence has not been challenged or controverted by way of counter affidavit, facts deposed remains good and reliable evidence which ought to be relied upon by a Court. See Ugwuanyi v NICON Insurance Plc (2013 LPELR-SC.248/2005 & Inegbedion v. Selo-Ojemen & Anor (2013) LPELR-SC.92/2004. In the circumstance, I have no hesitation to hold that the position of General Manager Human Resources of the Respondents is no longer vacant and no Injunction will issue to restrain the Defendants from filling same. I so hold. The second prayer of the Applicant is for an order for payment of Claimant's due salaries and allowances from December 2012 to date. Whoever approaches the Court for a grant of a relief is under an obligation to adduce credible and admissible evidence in support of his claim. This is a variation of the age-long saying which has found both judicial and legislative expression that he who asserts must prove. See Olusanya v. Osinneye/Osinleye (2013) LPELR-20641(SC)and Section 131 Evidence Act, 2011. I had averted to the scanty nature of the written address filed by the learned Counsel to the Claimant/Applicant at the beginning of this Ruling. I find no argument in the written address to warrant the grant of this relief at this stage of the proceedings and I so hold. In any event, the position of the law is that a staff or a former staff is not entitled to wages or salaries for services not rendered. See Cooperative Bank Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 & Olatubosun v. NISER, Council (1988)3 NWLR (Pt. 80) 25. The third relief sought is for setting down for hearing as a preliminary point of law the issue of Defendants compliance with the provisions of the Production Sharing Contract (PSC) and the Petroleum Act and regulations thereunder. The Production Sharing Contract (PSC) and the Petroleum Act together with all the regulations made pursuant to same are germane to the substantive suit filed by the Claimant/Applicant. That issue is fundamental to this suit. It goes to the very root of the main suit itself. It appears not clear to me how the learned Counsel wants this Court to grant this relief at an interlocutory stage in isolation of the substantive suit. Once that issue is resolved at this stage it amounts to determination of the main suit at the interlocutory stage and virtually nothing will be left for consideration in the substantive suit. In other words is there any judicial wisdom in taking the course as sought by the learned Counsel to the Claimant/Applicant? I find and hold that there is no way this prayer will be granted without a consideration of the merit of the whole case. I further hold that to do that, no doubt, will offend the direction of the appellate Courts in respect of such matters. See Obeya Memorial Hospital v. A. G Federation (1987)3 NWLR (Pt. 60) 325, Kotoye v. CBN (1989)1 NWLR (Pt. 98)3, Onyesoh v. Nnebedum (1992)2 NWLR (Pt. 229) 315 at 121 and Nwankwo v. Yar' Adua (2010)12 NWLR (Pt. 1209) 518 at 5. This prayer is also refused. Finally and for the avoidance of doubt, the three prayers sought are refused and dismissed for the various reasons as contained in this Ruling. This application is dismissed accordingly. This matter shall therefore proceed to be heard and determined on merit. I make no order as to cost. Ruling is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge