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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 Dated: February 02, 2015 SUIT NO. NICN/OW/34/2014 Between CWAY Nigeria Drinking Water Science and Technology - Claimant/Applicant And 1. Commr. Chief Oruge 2. Commr. Prince W. D. Addah (for themselves and on behalf of Nigeria Labour Congress Rivers State Chapter) 3. Chief Atu Defendants/Applicants (For himself and for and on behalf of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees Rives State (AUPCTRE) Representation C. M. Nwaka for the Claimant C. A. Agu for the Defendants RULING/JUDGMENT The Claimant took out a complaint on the 28th day of March 2014 jointly and severally against the defendants, seeking the following reliefs: a. A declaration that the claimant and the defendants have no contractual relationship of employer and employee and the defendants have no right to interfere in the internal affairs of the claimant on the issue of who to fire or retain as employees and terms of engagement therefore. b. A Declaration that the conduct of the defendants, on the pretext of picketing, of forcefully taking over the claimant’s premises. Invading, barricading and locking the only gates into and out of the business premises of the claimant and stopping production by preventing the staff and management of the claimant from entry and exit from the claimant’s factory and said business premises and from carrying out production and marketing the claimant’s product and stopping and paralyzing the business of the claimant from 26th February 2014 to 4th March 2014 are wrongful and constitute acts of trespass. c. Payment of 150m general damage. d. An order of perpetual injunction restraining the defendants whether by themselves or by their servants agents and privies from interfering or further interfering in the business of the claimant or barricading their gates and forcefully taking over control of the claimant’s premises and preventing the staff and management of the claimant from gaining access into the claimant premises to carry out their lawful duties or interfering in their freedom of entry and exit from the claimant’s factory and business premises. By a motion on Notice dated and filed the 28th day of March 2104, the Claimant seeks for an order of interlocutory injunction restraining the defendants, whether by themselves and or by their servants agents and privies from invading or further invading or taking over the claimant’s office or barricading their entrance and exit gates or in any way preventing the workers from entry and exit from the company or in any way obstructing or preventing the claimant from carrying on its trade and business pending the determination of this action. The Motion is supported by an affidavit of 26 paragraphs deposed to by Chief Ghandi Ehiobu and upon which the Claimant placed reliance. In the written address in support of the motion for interlocutory injunction, Counsel formulated the following three (3) issues for the determination of the court: 1. Whether there is a serious issue to be tried? 2. If so, will damages be adequate compensation? 3. If damages will be inadequate compensation, in whose favour is the balance of convenience? In arguing Issue 1 “Whether there is a serious issue to be tried”, it was the submission of Counsel for the applicant that the point of whether the defendants can under the guise of picketing take the law into their hands and invade the claimant, sack the staff and management, take over the company, restrict access and exit for the company and paralyze the company are very serious issues to be tried in addition to others. He referred to the authority of ONYESOH vs. NZE CHRISTOPHER NNEBEDUN & ORS (1992) 3 NWLR Pt.229 Pg. 315 at 318 where the Supreme Court held thus: “It is not the law that the applicant must show a prospect of obtaining a permanent injunction at the end of the trial. It is sufficient for the applicant to show that there is a serious question between the parties to be tried at the hearing”. Counsel for the applicant submitted that an interlocutory injunction is granted pending the trial of the action in order to keep matters in status quo until the issues in controversy between the parties are tried and determined. Thus an applicant can properly obtain an order of interlocutory injunction even though he has not made out a case that may entitle him to win a perpetual injunction. See Globe Fishing Industries Ltd. vs. Coker (1990) 7 NWLR Pt. 162, Pg. 265. He cited the case of AMERICAN CYANAMIDE CO. vs. ETHICON LTD. (A House of Lords English Case) 1975 A.C. 396; 1975 1 ALL ER 504; and referred to page 56 of the book “Injunctions and Enforcement of Orders” by AFE BABALOLA SAN as follows: “At the stage of interlocutory injunction, it is not part of the function of the court to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial.” Counsel urged the court to resolve issue 1 in favour of the applicant. On Issue 2 “whether damages will be adequate compensation”, Counsel for the applicant submitted that from the affidavit evidence, damages will not be able to compensate the claimant and its workforce for the psychological trauma, monumental loss of profits and goodwill and inability to access funds, documents and lack of faith in the management by the employees to protect the company an workers from external aggression leading to low morale by the workforce. He went on that the above and more are not things that can easily be quantified by way of money, and the defendants are certainly not in a position to pay the damages. On the other hand, the claimant is willing and able to give an undertaking to pay damages to the defendants if they suffer any damages, even though the type of injunction prayed for herein, the defendants will not suffer any damages because what the Claimant seeks is that the defendants should be restrained from invading the Claimant’s company. Nobody has a right to invade another person’s company and will not suffer any damages if restrained from so doing. He therefore urged the court to resolve Issue 2 in favour of granting the application. On Issue 3 “whether if damages will be inadequate compensation, in whose favour is the balance of convenience”, Counsel cited the view of the Learned author AFE BABALOLA at page 58 of the book Injunctions and Enforcement of Orders, that “It seems clear that it is only when there is doubt as to adequacy of damages that the question of balance of convenience arises. This is because the matter of convenience only arises when it is established that damages will be inadequate to compensate one or the other side. In this case the issue of damages to the defendants does not arise at all. What is meant by balance of convenience is the disadvantage to one side or the other side which damages cannot compensate. It has been aptly defined as the risk of doing injustice. The plaintiff must show that the balance of convenience is on his side. Who will suffer more inconvenience if the injunction is not granted? In ACB vs. OGBORO (1999) 2 NWLR (Pt. 176) Pg. 711 at 719 TOBI JCA, as he then has had this to say: “The balance of convenience (the opposite of inconvenience) between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurement of the scales of justice to see where the pendulum tilts. While the law does not require mathemathical exactness, it is the intention of the law that the pendulum should really tilt in favour of the applicant” Counsel submitted that from the affidavit evidence, it is certain that the balance of convenience is in favour of granting an interlocutory injunction in this case against the defendants after resolving issue 3 in the claimant’s favour. Counsel for the Claimant then urged the Court to hold that the applicant has made out a case for grant of the Motion for Interlocutory Injunction herein against the defendants. This is because it is just so to do as there is a serious issue to be tried, damages cannot adequately compensate the claimant and the balance of convenience is in favour of granting the injunction. In opposition to the Claimant’s Motion for Interlocutory Injunction, the Defendants/Respondents on the 24th day of April 2014, filed a 14 Paragraph Counter Affidavit deposed to by the 3rd Defendant, and upon which they placed reliance. To counsel, from the counter affidavit before the court, the following salient facts appear and are very crucial to the just determination of this application. 1. That prior to the unionization of the workers of the claimant/applicant in March, 2012, the workers were inhumanly maltreated as they were not even issued appointment letters as a result of which their employment was terminated without due process being followed. 2. That on the 14th day of November 2012, a meeting was held between the management of the clamant/applicant herein, Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) and the Nigerian Labour Congress, Rivers State Council at No. 12 Igboukwu Street, D/Line, Port-Harcourt, and a Communique was issued at the end of the said meeting. 3. That the said meeting was convened at the instance of the Nigerian Labour Congress, Rivers State Council over the problems between the management of the claimant/applicant herein and the Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE). 4. That not sooner after the said meeting of 14th November 2012, and the consequent communiqué issued thereafter, one Comrade Kenneth Maurice, the Union Secretary was assaulted and/or beaten up mercilessly by the Production Manager of the claimant/applicant, Mr. Wuh, a Chinese by Nationality without any cause contrary to clause 6 of the said communiqué issued at the meeting of 14th day of November, 2012. 5. That upon report of the said assault on the Union Secretary of the Cway branch to the union office, a report was made to the Divisional Police Officer (DPO) Elenwo Police Station via a letter dated the 5th June, 2013. 6. That in response to the indiscriminate termination of Union members employment by the claimant/applicant as a result of their union activities; the Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) have always written to the General Manager of the claimant/applicant requesting for reinstatement of the workers, but the General Manager and Management of the claimant/applicant had always paid deaf hears to the union request. 7. That in further reaction to the victimization of union staff by the management of the claimant/applicant as a result of their union activities contrary to clause 6 of the communiqué issued at the meeting of 14th November, 2012, the Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) have written series of letters to the Nigeria Labour Congress (NLC) Rivers State seeking for its intervention into the situation. 8. That in spite of several warnings on the claimant/applicant to desist from its victimization of the union members, and implement the said communiqué issued at the meeting of 14/11/2012, the claimant/applicant still continued and/or persisted in its anti-labour activities against the workers, particularly the union members. 9. That in response to the calls from the Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) for Nigeria Labour Congress’s intervention into the anti-labour activities of the claimant against the workers/union members in willful breach of the communiqué of the meeting of 14/11/2012, the Nigerian Labour Congress (NLC) Rivers State Council, gave Notice to PICKET the claimant/applicant to the Commissioner of Police, Rivers State Police Command, Port Harcourt, and complaining about the flagrant breach of the said communiqué by the claimant/applicant against the workers/union members via a letter dated 24/02/2014. 10. That prior to the Nigeria Labour Congress’s letter of 24/2/2014, the Nigeria Labour Congress had given a seven (7) days’ notice of its intention to PICKET the claimant/applicant should they refuse to recall/reinstate the sacked workers. 11. That in spite of the above warnings and cautions from both the Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) and the Nigerian Labour Congress (NLC) on the claimant/applicant to reinstate the sacked workers, and to desist from its anti-labour activities against the workers, the claimant/applicant remained adamant, consequent upon which the said “PICKETING” was carried out in exercise of the workers/union members right under the various Labour Laws of the land. 12. That picketing is a common tactic used by Trade Unions during strikes by trying to prevent dissent members of the union, members of other unions and unionized workers from working. Those who cross the picket line and work despite the strike are known pejoratively as scabs. 13. That the defendants/respondents picketed the claimant/applicant as a form of protest in which its members congregated outside the claimant’s/applicant’s workplace. This was done to prevent the claimant/applicant from engaging in anti-labour activities against its staff who are members of Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees and Nigerian Labour Congress. Counsel for the respondents proceeded to formulate a sole issue for the determination of the court, which is “Whether the claimant/applicant has made out any case for the grant of the order of interlocutory injunction”. In arguing the sole issue, Counsel set out the relevant principles that will be necessary for the consideration of this application as follows: 1. That the relief of interlocutory injunction is an equitable remedy granted by the court before the substantive question raised in the case is finally determined. 2. The object or purpose of the relief of injunction is to keep matters in status quo while the case is pending. He cited the case of MILITARY GOVERNOR OF LAGOS STATE vs. OJUKWU (1986) 1 NWLR (Pt. 18) 621. See also ORJI vs. ZARIA INDUSTRIES LTD. (1992) NWLR (Pt. 216) 124 @ 138 G RATIO 1. Thus, to counsel, the remedy of interlocutory injunction is not for the purpose of changing existing status quo. The status quo in this case is that the claimant/applicant has already been picketed. 3. In the consideration of the application for interlocutory injunction, the court is under a duty to ensure that it does not in the determination of the application determine the same issues that would arise for determination in the substantive action or grant to the applicant substantially the same relief as would be granted to him at the end of the suit if he was successful. See AKAPO vs. HAKEEM-HABEEB (1992) 6 NWLR (Pt. 247) 260 @ 287 G ratio 10 ORJI vs. ZARIA INDUSTRIES (supra) @ 141 RATIO 8. According to Counsel, it is trite that an application for an order of interlocutory injunction restraining the defendants from doing certain things will be limited to the prayers sought in the application. See GBADAMOSI vs. ALATE (1993) 2 NWLR (PT. 273) 43 @ 422 F – G RATIO 5 Counsel for the defendants submitted further that it is clear from the reliefs sought and the applicant’s argument that any order granting the relief sought in this application would be in breach of the principles set out above. To counsel, a look at the prayers contained in the motion and the affidavit in support shows that the claimant/applicant wants the Court to restrain the defendants/respondents from further picketing it. Counsel therefore urged the court not to accept the invitation to restrain the defendants/respondents from further picketing the claimant/applicant at this stage of the proceedings as it will amount to determining the substantive suit. Counsel referred court to the Court of Appeal decision in MADUBUIKE vs. MADUBUIKE (2000) FWLR Pt. 30 pg. 261 at 2020 para. H-A where it was held thus: “That the court when considering the grant of prayer for interlocutory injunction should not delve into substantive issues which are to be dealt with only during trial. Thus live issues must be left for the substantive trial of the suit. If live issues are tried at the interlocutory stage, there will be nothing left for trial at the substantive hearing of the suit” See also OGBONNAYA vs. ADAPALM NIGERIA LTD. (1993) 5 NWLR (Pt. 292) 147; A.B.U. vs. ALELE WILLIAMS (1995) 5 NWLR (Pt. 241) 340. According to Counsel, since the defendants/respondents have from the tenor of the counter affidavit denied the entire averments in the claimant’s/applicant’s affidavit and have stated the true position of the facts, the court should consider the balance of convenience and the status quo to be maintained. He submitted that injunctions are issued to prevent a threatened wrong, damages or a threatened infringement of a legal right or a threatened breach of contract and are not granted on declaratory actions simpliciter See OLU OF WARRI vs. NNAEMEKA AGU (1994) 1 NWLR (Pt. 319) Pg. 195 It is trite law that where the subject matter of substantive litigation is not a perishable commodity, the better course would be for the court to accelerate the proceedings and hear the substantive action to save time and inconvenience instead of taking arguments on interlocutory injunction, particularly in situations where pleadings had been ordered filed and exchanged. The trial court should leave no stone unturned to avoid trying the same question on two occasions. See GOVERNOR IMO STATE vs. ANOSIKE (1987) 4 NWLR (Pt. 66) 663 at 672. In OYEYEMI vs. IREWOLE LOCAL GOVT. (1993) 1 NWLR (Pt. 270) 462 @ 476, Nnaemeka – Agu J.S.C. said thus: Also it must be noted that the purpose of an order to maintain the status quo is to preserve the res, the subject matter of the litigation from being wasted damaged or frittered away with the result that if the appeal succeeds, the result would be nugatory in that the successful appellant could only reap an empty judgment when as in this case, a court of law find that completion of a step sought to be restrained will not render the Appeal if successful nugatory, then there is absolutely no basis for making the order to maintain the status quo. See also JOHN HOLT NIG. LTD. vs. HOLT AFRICAN WORKER UNION OF NIG. & CAMEROON (1963) 2 S.C.N.L.R. 388, (1963) 1 All NLR 379. Counsel submitted further that the court has a duty to accelerate hearing instead of hearing interlocutory application. In ONYESOH vs. NNEBEDUM (1992) 3 NWLR Pt. 229, P. 315, the court held as follows: “Whenever it is possible to accelerate the hearing of a case Instead of invading through massive affidavit and hearing lengthy arguments on interlocutory injunction, the court should accelerate the hearing and decide finally on the rights of the Parties”. An interlocutory injunction cannot be granted to restrain a threatened wrong to a right and should not be granted to restrain the lawful enjoyment of legal right. The premises for an application for an interlocutory injunction are the claim before the court. It is usually granted with the object of keeping matter in status quo until the question at issue before the parties is determined. See. AKIBU vs. ODUNTAN (1991) 2 NWLR Pt. 171 Pg. 1 S.C. It was counsel’s further submission that the court will have to consider whether the respondents to this application will suffer greater inconvenience, hardship or injustice if the injunction is granted against them and it turns out that the defendants/respondents are right in picketing the claimant/applicant in exercise of the workers right under the relevant labour laws of the land or on the other hand whether the claimant/applicant will suffer granter inconvenience, hardship or injustice if the injunction is refused. He went on that there is no credible evidence of any intention and/or threat by the defendants/respondents to repeat the said picketing while this suit is still pending. He stated further that in considering whether the damage accruable at law would be adequate compensation for the claimant/applicant for the loss they would have sustained in the meantime and the defendants/respondents would be in a position to pay, no injunction would be granted no matter how strong the claimant’s case is. See: SARAKI vs. KOTOYE (1990) 4 NWLR (Pt. 143) 144 @ 166. According to Counsel for the respondents, damages will not provide adequate remedy for the claimant should they succeed at the trial, the court will consider whether if the defendants/respondents were to succeed at the trial, they would be adequately compensated by the claimant/applicant undertaking to pay damages. SARAKI vs. KOTOYE (Supra). A look at the affidavit in support of the motion shows that the claimant/applicant has not shown what it will suffer should the application be refused and even if it will suffer any damage (which is not conceded) the same can be compensated in money. Counsel stated that where the issue in this kind of application is a monetary or pecuniary issue, an injunction should normally not be granted. See SOTIMU vs. OCEAN STEAMSHIP (1992) 5 NWLR (Pt. 239) 1 @ 23 ratio 4. Counsel went further that it is trite law that injunctive order is not a remedy for actions already carried out. In other words, a court of law cannot grant an injunction to restrain a completed act. He referred to the case of ALL STATES TRUST BANK vs. CHYKE INTERNATIONAL LIMITED (2003) FWLR (Pt. 141) Pg. 1903 where the Court of Appeal stated the law as follows: “An application to set aside an action that has already taken place (usually for grant of injunction) is not perceived as 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”. According to Counsel, the said picketing in respect of which the claimant/applicant has brought this application and which is sought to be restrained has been carried out since the 26th day of February, 2014 and in fact constitutes the cause of action in this suit. In the circumstance, Counsel for the defendants submitted that nothing remains to be restrained by the court in this application He went further that the defendants/respondents have rights to picket the claimant/applicant as it has done under section 43 of the Trade Unions Act, Cap T14 LFN 2004 and cannot therefore, be restrained from exercising their legal rights. In urging the Court to dismiss the application for interlocutory injunction, Counsel for the defendants submitted that the balance of convenience is in favour of the defendants/respondents in this application, and he urged the Court to so hold. By a notice of preliminary objection dated the 23rd day of April 2014 and filed on the 24th day of April 2014, the Defendants/Applicants sought the order of this court striking out this suit for being an abuse of court process. The preliminary objection was brought on the following grounds: 1. That the claimant filed Suit No. FHC/PH/FHR/63/2014 now pending at the Federal High Court, Port Harcourt between the same parties which suit is still pending, having not been determined. 2. That the present suit and Suit No. FHC/PH/FHR/63/2014 now pending at the Federal High Court Port Harcourt arose from the same transaction and is against the same parties. 3. That the cause of action in this present suit and that in Suit No. FHC/PH/FHR/63/2014 is substantially the same and is against the same parties as they arose from the same transaction. The Applicants’ Notice of Preliminary objection is supported by an affidavit of 11 paragraphs deposed to by the 3rd defendant Comrade (Chief) Okwa P. Atu, upon which the applicants placed reliance. Facts deposed to in the said affidavit were to the effect that the Claimant had earlier filed Suit No. FHC/PH/FHR/63/2014 which is now pending at the Federal High Court Port Harcourt against the defendants. Attached to the affidavit as Exhibit “A” is the originating process in the said Suit No. FHC/PH/FHR/63/2014 filed by the claimant herein against the defendants; that the said Suit No. FHC/PH/FHR/63/2014 now pending at the Federal High Court, Port Harcourt and this present suit both arose from the same transaction and are both against the same defendants. Counsel in his written address in support of the notice of preliminary objection, submitted that the Claimant herein had earlier filed Suit No. FHC/PH/FHR/63/2014 against the defendants herein; which suit is still pending at the Federal High Court Port Harcourt and has not been determined. He went on that both suits have the same set of facts, arising from the same transaction, hence this application by the defendants. Counsel for the defendants proceeded to identify a sole issue for the determination of the court which is: “Whether this suit as constituted is not an Abuse of Court Process? In arguing the sole issue, Counsel for the defendants submitted that this suit as presently constituted is an abuse of court process. He urged the Court to resolve same in favour of the defendants. According to the applicants, an abuse of court process means that the process of the court has not been used bonafide and properly. In other words, an abuse of court process is not in the specie of sins commonly called an irregularity. It is a more fundamental vice which is deserving of dismissal. An abuse of the process of the court may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. For example, where two similar processes are used against the same party in respect of the exercise of the same right and subject matter. See: OKAFOR vs. ATTORNEY GENERAL ANAMBRA STATE (1991) 6 NWLR (Pt.200) 659; SARAKI vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 Para. D-E. In the case of NGIGE vs. ACHUKWU & 2 ORS. (2004) 8 NWLR (Pt. 875) Pg. 358 @ 358, the Court of Appeal declared what amounts to Abuse of Court Process thus: “Before applying the principle of abuse of court process to a case, the court must ensure that the: (a) Parties, (b) Issues; and (c) Subject matter are the same” According to the defendants/applicants, they have by their affidavit in support of this application as well as the attached exhibits, shown clearly that the Parties, Issues and the Subject Matter in this suit are the same with those of Suit No: FHC/PH/FHR/63/2014. See paragraphs 4, 5 and 6 of the affidavit in support. See also Exhibit “A” herein. Counsel cited the case of AGWASIM vs. OJICHIE (2004) 10 NWLR (Pt. 882) Pg. 613 @ 615, where the Supreme Court unequivocally held as follows: (a) “Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. (b) Instituting a multiplicity of actions on the same matter between the same parties inter alia amounts to abuse of court process” This Court being a superior Court of record is conferred with all the inherent powers and sanctions by virtue of section 6 (6) of the 1999 Constitution and these inherent powers are necessary adjunct of the powers conferred by the rules of court, and they are invoked by the court to ensure the due application and proper lubrication of the machinery of justice and to ensure its protection from abuse. He therefore urged the Court that these proceeding being an abuse of process, this court has the right, and in fact a duty to invoke its coercive powers under Section 6 (6) of the 1999 Constitution to dismiss the action. The present suit filed by the claimant/respondent who is also the applicant in Suit No: FHC/PH/FHR/63/2014 now pending at the Port Harcourt Federal High Court is against the same parties and the cause action arose from the same transaction. See Exhibit “A” Counsel concluded by urging the Court to grant the application of the defendants and strike out or dismiss the suit for being an abuse of court process. In opposition to the Defendants’ Notice of Preliminary Objection, the Claimant on the 2nd day of May 2014, filed a Counter Affidavit deposed to by Chief Gandhi Ehiobi; upon which they placed reliance. In the written address in support of the Counter Affidavit, Counsel identified a sole issue for the determination of the Court which is: “Whether Suit No: NICN/OW/34/2014 herein constitutes an abuse of Court Process because of Suit No: FHC/PH/FHR/63/2014.” In arguing the sole issue, counsel cited the case of Ngige vs. Achukwu (supra) to the effect that: “Before applying the principle of abuse of court process to a case, the court must ensure that the: (i) Parties (ii) Issues and (iii) Subject matter are the same…” Counsel for the Claimant submitted that the applicants herein for Preliminary Objection did not obey the injunction in Ngige vs. Achukwu (supra) cited by them in bringing this Notice of Preliminary Objection because the parties, issues and subject matter are not all the same in this application. The Claimant filed a Counter Affidavit to show the different parties, issues and subject matter. In Suit No: NICN/OW/34/2014, the applicant sued personally to enforce a personal right. In Suit No: FHC/PH/FHR/63/2014, the Claimant herein is only one of the 4 applicants therein. So clearly the parties are not all the same. The Claimant also deposed in the Counter Affidavit in opposition that the subject matters of the 2 actions are not the same. This is clear from the complaint and statement of claim and the application for enforcement of fundamental rights pending at the Federal High Court Port Harcourt Exhibit ‘A’. The 4 applicants in Suit No: FHC/PH/FHR/63/2014 applied to enforce their fundamental rights to personal liberty, freedom of movement, right to property and to privacy and right to dignity of human persons. In this action, only one of the applicants in Suit No: FHC/PH/FHR/63/2014 sued for 2 declarations – that the Claimants and Defendants have no contractual relationship of master and servant and the defendants have no right to interfere in the internal affairs of the claimant etc. and a declaration that the defendants’ conduct on the pretext of picketing constitutes trespass. The claimants also claimed the ancillary reliefs of damages and perpetual injunction. It is thus clear that parties and the subject matter of the two different actions are not the same. In E.F.P. CO. LTD vs. N.D.I.C (2007) 9 NWLR (Pt. 1039) Pg. 216 @ Pg. 245 paras E – F ratio 18, the Supreme Court held as follows:- “Two suits or matters must co-exist and the parties and subject matters must be the same before the issue of abuse of court process can arise”. In AMACHREE vs. PRINCEWILL (2008) 12 NWLR Pt. 1098 Pg. 345 @ P. 363, PARAS. F – H; 367 PARAS. A – B ratio 4, the Court of Appeal held as follows:- “Since abuse of court process involves or lies in the improper use of the court’s process to file multiple actions in one or more courts, the parties as well as the subject matter, claims or issues in the earlier or previous suits must be the same or substantially so with the later suit in order for the later to amount to an abuse of court process. Therefore, where either the parties or/and the claims, subject matter or issues are different in the suits, then one cannot rightly and properly be said to amount to an abuse of court process in relation to the other. In the instant case, Shell Petroleum Development Company of Nigeria was not a party in Suit No. PHC/972/2002 and the claims in it were therefore not the same or even substantially so as in Suit No. PHC/1992/2003. Accordingly one could not be and was not an abuse of the court process in relation to the other relied on”. According to Counsel for the Claimant, the law recognizes that an application to enforce a fundamental right is a different cause of action from a common law tort or any other claim like in this case where the claimant is one of the parties that applied to enforce its fundamental rights, different from the claim herein. It cannot be said that the applicants in Suit No: FHC/PH/FHR/63/2014 cannot, if their fundamental rights were infracted, approach a High Court in that state for redress. See Section 46(1) of the Amended Constitution and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 which provides that any person who alleges that any of the Fundamental Rights provided in Chapter 4 of the Constitution has been infringed upon can approach a HIGH COURT IN THAT STATE for redress. In the same vein, it cannot be said that if the claimant in this case is entitled to any of the declarations and orders sought herein, it cannot approach this court for redress. It is said that there is no wrong without a remedy. The claimant is entitled to approach this court to exercise its jurisdiction over matters that come within section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act. In Ali vs. Albishir (2008) 3 NWLR Pt. 1073 Pg. 94 at Pg. 142 para. C, the Court of Appeal held that: “There would be no abuse of process where a party exercises his right of action bona fide.” In Unifam Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (2005) 3 NWLR Pt. 911 Pg. 83 at 100 paras. E – H, the Court of Appeal held as follows: “Accessibility to a court of law to vent a real or imagined grievance is generally regarded as a hallmark of democracy. It is only if lack of bona fide can be read into the motive to resorting to a Court of Justice that the process initiating the suit can be properly described as an abuse of court process. Thus, it is not the exercise of the right per se, but its improper and irregular exercise, which constitutes of the application which constitute the abuse. Otherwise where there is a right to bring an action the state of mind of the person exercising the right cannot affect the validity or impropriety of its exercise”. Counsel submitted that on the facts of the two actions in issue, the applicants in the fundamental rights application and the claimant herein are entitled to approach the courts to seek remedy. In Unifam Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd (supra) ratio 3, the Court of Appeal held “that a resort by the applicant to different remedies was an exercise of its constitutional right”. Counsel asked the Court to take cognizance of the special circumstances of the two cases herein. This court has no jurisdiction to entertain the fundamental rights applications in issue because by virtue of section 46(1) of the Constitution and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, Jurisdiction is vested in fundamental rights matters on a High Court in the State where the infraction or that threat of it occurred. This is not a High Court. On the other hand the Federal High Court where the application to enforce fundamental rights of the applicants is pending, has no jurisdiction to entertain the subject matter of the claims herein. The law recognizes that the two claims in the two matters in contention herein are different. It was Counsel’s submission that it is not enough for applicants to allege that because two actions exist in 2 different courts, they constitute an abuse of court process. He must show that they were not mala fide as held by the Supreme Court in CBN vs. AHMED 362 (2001) 11 NWLR (Pt. 724) Pg. 362 at pp. 408 paras. C’ G – H. 410, paras B – C:- “No doubt when a Plaintiff uses legal process to harass or irritate an adversary, or employs it to impede the administration of justice, this may tantamount to an abuse of process of court. “Abuse or process arises, where the Court’s process is being used mala fide. It is, therefore, not enough that two suits have been instituted against the same parties on the same subject matter, it is necessary that the party complaining about abuse of process of Court must go further to establish that the Plaintiff’s suits were motivated mala fide. In the instant case, the appellant in bringing its application before the Supreme Court is exercising its constitutional right of appeal under the constitution…” He submitted that the case of AGWASIM vs. OJICHIE (2004) (supra) cited by the defendants/applicants does not help their application because the parties and subject matter of the 2 actions herein are not the same. Counsel urged the Court to refuse and dismiss the Preliminary Objection for the following reasons:- (1) This case is not an abuse of court process because the parties, issues and subject matter are not the same. (2) Suit No: FHC/PH/FHR/63/2014 is a fundamental right application by 4 applicants while this action Suit No: NICN/OW/34/2014 is a claim for declarations and injunction etc. at common law by one Claimant only, against the defendants and both actions are in bona fide exercise of constitutional rights of the Claimants. (3) Neither of the 2 courts concerned – Federal High Court and National Industrial Court can exercise jurisdiction over the 2 different claims in the two matters aforesaid. (4) The Preliminary Objection is frivolous and unmeritorious. He urged the court to refuse and dismiss the preliminary objection with costs. In this ruling, it is clear from the foregoing summaries of the arguments of the respective learned counsels to the parties in their written addresses that, two applications are to be considered. They are the claimant’s motion for interlocutory injunction and the defendants’ preliminary objection. The preliminary objection raises the issue of abuse of court process. Abuse of court process has been identified as one of the defects which affect the jurisdiction of court. Once a process or suit is found to constitute abuse of the process of court, the court lacks jurisdiction to continue with the matter. Therefore, the preliminary objection of the defendants touches on the jurisdiction of this court to entertain this matter. It is trite that once the issue of a court’s jurisdiction is raised, it must be settled first and timeously too before any other step is taken in the matter. See BABALOLA vs. OBAOKU-OTE (2005) 5 W.R.N 179 at 194. I shall therefore consider and determine the preliminary objection first before going into the motion for interlocutory injunction, if necessary. The defendants’ preliminary objection is on the ground that this present suit is an abuse of court process. The Particulars of the abuse are that the Claimant filed suit FHC/PH/FHR/63/2014 before the Federal High Court, Port Harcourt between the same parties, and that the suit is still pending. The causes of action in the two actions are substantially the same, against the same parties and arose from the same transaction. In the affidavit in support of the Notice of Preliminary Objection deposed to by the 3rd defendant, it is deposed that the claimant filed suit FHC/PH/FHR/63/2014 before the Federal High Court, Port Harcourt Division against the defendants, and the suit is still pending. The said suit and this present suit arose from the same transaction and against the same people. The cause of action in suit FHC/PH/FHR/63/2014 and this suit is substantially the same as they arose from the same transaction. The defendants stated further that this suit, which is an abuse of the process of court, is an improper use of judicial process to annoy and irritate them. The claimant, in its counter affidavit, did not deny the existence or pendency of suit FHC/PH/FHR/63/2014 before the Federal High Court but its contention is that the suit is an application for enforcement of the Fundamental Human Rights of the applicants therein which this present suit is not. The claimant contended also that the 2nd to 4th applicants in suit FHC/PH/FHR/63/2014 are not parties to this suit. The parties in the two suits are therefore different and the reliefs sought in the 2 actions are not the same. Another important point in the counter affidavit is the averment that this court has no jurisdiction to enforce fundamental human right, which is the basis of suit FHC/PH/FHR/63/2014, while the Federal High Court has no jurisdiction to entertain any claim of the nature of this suit. In determining this application, I shall adopt the issue formulated by the claimant’s counsel in his written address. That is, whether this suit constitutes abuse of court process in view of suit FHC/PH/FHR/63/2014. In resolving the only issue arising for determination in this preliminary objection, it is significant to observe that abuse of Court process may be manifest in both a proper or improper use of the judicial process in litigation. However, the employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. There is no doubt that all Courts take a firm stand against the abuse of the processes of Court. But before a party is penalized for the act, it must be established that the erring party had abused the process of Court by improper use of the processes of Court. An action which amounts to an abuse of the process of Court may vary but it ought to fall generally within the circumstances identified in plethora of cases as amounting to abuse of court process. The Supreme Court, in R-BENKAY (NIG.) LTD vs. CADBURY (NIG.) PLC (2012) All FWLR (Pt. 631) 1450 at 1466, set out various circumstances that will amount to abuse of court process. They include- i. Instituting a multiplicity of actions on the same subject of matter against the same opponent on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. ii. Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. iii. Where two similar processes are used in respect of the exercise of the same right, for example, a cross-appeal and a respondent’s notice. iv. Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the lower court. v. Where there is no law supporting a court process or where it is premised on frivolity or recklessness. vi. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. vii. It is an abuse of court process for an appellant to file application at the trial court in respect of a matter which is already subject to an earlier application by the respondent at the Court of Appeal. When the appellant’s application has the effect of overreaching the respondent’s application. viii. Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima-facie vexatious an abuse of court process. See SARAKI vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188; OPEKUN vs. SADIQ (2003) FWLR (Pt. 150) 1654 at 1661. The assignment at this point ordinarily would have been to examine both suits with a view to discover if any of the circumstance of abuse is present in this suit. However, the particulars of the preliminary objection have directed this court on what nature of abuse the defendants complained about. The defendants’ contention is that the parties, subject matter and the facts in suit FHC/PH/FHR/63/2014 and this suit are the same. In his written address, the defendants counsel argued that the parties, issues and subject matter in the two suits are the same and cited the case of NGIGE vs. ACHUKWU. It is trite that it is an abuse of court process instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. Thus, where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject matter, it will be regarded as an abuse of court process. See OKORODUDU vs. OKOROMADU (1977) 3 S.C 21; OKAFOR VS. A-G ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 63 at 681; NNANA vs. NWANEBE (1991) 2 NWLR (Pt. 172) 181; OLUTINRIN vs. AGAKA (1998) 6NWLR (Pt. 554) 366. The question that will arise at this point is: “Are the parties, issues and subject matter in the two actions the same as contended by the defendants?” It is common ground between the parties that suit FHC/PH/FHR/63/2014 was filed earlier than this suit which suit is still pending before the Federal High Court. The defendants annexed a copy of the originating process to the affidavit in support of the Notice of Preliminary Objection as Exhibit A. The exhibit discloses that the suit was filed on 6th March 2014 before the Federal High Court, Port Harcourt Division for the enforcement of the fundamental human rights of the applicants. This instant suit was filed on 28th March 2014. The applicants in suit FHC/PH/FHR/63/2014 are- i. Cway Nigeria Drinking Water Science And Technology Company Limited ii. Mr. Uchendu Ekpete iii. Mr. Anthony Naani iv. Mr. James Ewache (For themselves and Workers/Employees of Cway Nig. Ltd) The defendants thereto are- i. Comrade Chief Chris Oruge, ii. Comrade Prince W.D Addah, (For themselves and on behalf of NLC, Rivers State) iii. Chief Atu (State Chairman, AUPCTRE) For himself and on behalf of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees, Rivers State. Save for the 2nd to 4th applicants in suit FHC/PH/FHR/63/2014 who are not in this suit, all other parties are the same. The 1st applicant in suit FHC/PH/FHR/63/2014 is the claimant in this suit and the defendants in both suits are the same. To the claimants counsel, the absence of the 2nd to 4th applicants in suit FHC/PH/FHR/63/2014 in this suit makes the parties not to be the same in both suits. I disagree with this view of the claimant’s counsel. In paragraph 4, 5 and 6 of the affidavit in support of the application in the suit in Exhibit A, it was deposed that the 2nd to 4th applicants are staff/employees of the 1st applicant (which is the claimant in this suit) and they were in the premises of the 1st applicant when the defendants came to lock them in. The implication of this fact is that the 2nd to 4th applicants derived interest in the suit from their employer, the 1st applicant. In that case, they are the same party. Their employer is now the claimant in this case on the same set of facts and dispute. In paragraph 3 of the statement of fact of this suit, it is averred that the defendants, upon barricading the claimant’s gate, prevented staff of the claimant into or from the premises. Relief (b) on the complaint seeks a declaration, inter alia, that prevention of the staff and management of the claimant from entry and exit from the claimant’s factory and business premises is wrongful. I took time to set out these facts from the pleadings in order to show that the interest of the 2nd to 4th applicants in suit FHC/PH/FHR/63/2014 is not different from that of the claimant in this suit. In fact, their relationship, interest and indeed the effect of the reliefs sought in both suits indicate that they are the same parties in law. The term “party” when used in judicial proceedings is not limited to only those named in the suit or in the record of proceedings but also those who have direct interest in the subject matter of the dispute. See BALOGUN vs. AFOLAYAN (2002) FWLR (Pt. 85) 331 at 349, OKUKUJE vs. AKWIDO (2001) FWLR (Pt. 39) 1487 at 1539. From the pleaded facts and the reliefs sought in this suit, employees of the claimant, which include the 2nd to 4th applicants in suit FHC/PH/FHR/63/2014, are part and parcel of this suit. It is my view therefore that the applicants in suit FHC/PH/FHR/63/2014 are still the claimants in this suit. In the result, the parties in both suits are the same. The issue or cause of action in suit FHC/PH/FHR/63/2014, as contained in the statement and affidavit in support of the application in Exhibit A is that on 26th of February 2014, at about 5.30 am, a group of individuals identified to be members of AUPCTRE and NLC invaded the 1st applicant’s premises at No.1 Shell Location Road, Off KM 17, Port Harcourt-Aba express way Port Harcourt, Rivers State and unlawfully took over and barricaded the two gates leading in and out of the premises. The said members of AUPCTRE and NLC locked workers and staff of the 1st applicant outside the premises and unlawfully detained others inside the premises by blocking the entrance with NLC bus. The respondents are not employees of the 1st applicant and their takeover of the applicant’s premises is not with any order of court. I have also looked at the facts of this suit as disclosed on the statement of facts and I find that it is the same set of facts on which the two actions are based. The two suits arose from the same dispute. The issue and subject matter of the two actions is also the same, which is the invasion of the premises of the claimant by the defendants on 26/2/14. Let me also take a peep into the reliefs sought in both suits. In suit FHC/PH/FHR/63/2014 of Exhibit A, the applicants thereto sought- a. A declaration that the forceful locking, complete barricade and takeover of the gates-entrance and exit and premises of the applicants located at No.1 Shell Location Road, Off KM 17, Port Harcourt-Aba express way Port Harcourt, Rivers State is unconstitutional, illegal, null and void. b. An order forthwith for the respondents to vacate the said premises where the applicants do business and reside and releasing the applicants unlawfully detained therein c. An order against the respondents jointly and severally to pay N100m as compensation to the applicants jointly and severally. d. An order of perpetual injunction restraining the respondents from however interfering with the freedom of the applicants or forcefully occupying or taking over the applicants’ premises or any way interfering in the affairs of the applicants. e. Such further or other orders as this honourable may deem fit to make in the circumstances On the Complaint before this court, the reliefs sought therein by the claimant are- a. A declaration that the claimant and the defendants have no contractual relationship of employer and employee and the defendants have no right to interfere in the internal affairs of the claimant on the issue of who to fire or retain as employees and terms of engagement therefore. b. A Declaration that the conduct of the defendants, on the pretext of picketing, of forcefully taking over the claimant’s premises. Invading, barricading and locking the only gates into and out of the business premises of the claimant and stopping production by preventing the staff and management of the claimant from entry and exit from the claimant’s factory and said business premises and from carrying out production and marketing the claimant’s product and stopping and paralyzing the business of the claimant from 26th February 2014 to 4th March 2014 are wrongful and constitute acts of trespass. c. Payment of 150m general damage. d. An order of perpetual injunction restraining the defendants whether by themselves or by their servants agents and privies from interfering or further interfering in the business of the claimant or barricading their gates and forcefully taking over control of the claimant’s premises and preventing the staff and management of the claimant from gaining access into the claimant premises to carry out their lawful duties or interfering in their freedom of entry and exit from the claimant’s factory and business premises. It is obvious that the reliefs are substantially the same. Reliefs (a), (c) and (d) in suit FHC/PH/FHR/63/2014 have the same effect as reliefs (b), (c) and (d) sought in this suit. In his further argument that this suit is not an abuse of court process and in order to justify the multiplicity of the suits, the claimant’s counsel submitted that the application to enforce a Fundamental Right is different from a suit to enforce a common law right and in the circumstance of this case, this court has no jurisdiction to entertain Fundamental Human Rights proceedings by virtue of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and Order 2 (1) Fundamental Rights Enforcement Procedure. On the other hand, according to the Claimant, the Federal High Court has no jurisdiction to entertain the subject matter of the claim in this suit. I think counsel made this argument oblivious of the provision of section 254C (1) (d) of Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides that the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- “(d) Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine” Chapter IV of the Constitution deals with fundamental human rights. By the above provision, issues of fundamental human rights arising from employment, labour or trade unionism can be entertained by this court. In fact, a proper interpretation of the provision of Section 254C (1) of CFRN 1999 will imply that once the complaint of breach of fundamental right arises from an employment, labour, trade unionism, industrial relations, etc, it is this court that has the exclusive jurisdiction to entertain the dispute and not the High Court. Therefore, the fundamental human rights proceedings and the reliefs sought before the Federal High Court in suit FHC/PH/FHR/63/2014, which dispute arose from employment or trade unionism can be entertained by this court. By virtue of section 254C (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it would thus amount to multiplicity of suit for the claimant to take out a fundamental human right proceeding in the Federal High Court and another suit, from the same set of facts, in this court. Since it is the same set of facts founding the two actions, the claimant ought to have chosen which cause to pursue, either to pursue the suit in the Federal High Court or bring all his claims before this court since this court can entertain the nature of its claims in the two actions. The claimant is therefore using two similar processes in respect of the exercise of the same right. This is wrong. The claimant is not allowed to duplicate suits in different courts in respect of the same issues, and from which most of the reliefs sought in the two actions will ultimately result in the same end. In BEST WESTERN COMPANY LIMITED vs. UDORMISOR (2002) FWLR (Pt. 97) 744 at 761, it was held that a multiplicity of suits or proceedings by the same parties in respect of the same subject matter and issues whether in the same court or in different courts constitutes an abuse of court process. It does not matter whether the matter is on appeal or not. For as long as the previous action has not been finally decided, the subsequent action would constitute an abuse of process of court. Also in A.R.C vs. J.D.P CONSTRUCTION NIG. LTD. (SUPRA) at 270, it was held that where a party duplicates a court process, the more current one which results in the duplication is regarded as an abuse of court process. It should be noted that in the concept of abuse of court process, it is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of court. See ADESOKAN vs. ADEGOROLU (1991) 3 NWLR (Pt. 293) 297. Therefore, since the claimants instant suit was filed later than suit FHC/PH/FHR/63/2014, which suits are between the same parties, same subject matter, same set of facts and seeking substantially similar reliefs, this suit clearly constitutes an abuse of court process. I find that the defendants’ application has merit and it is hereby sustained. Where an abuse of process of court occurs, the courts do not take it lightly as it is not a mere irregularity. It is a fundamental vice as the said process becomes incompetent in law and the court lacks jurisdiction to continue to entertain same. The offending suit is liable to be dismissed or struck out. See COMMISSIONER FOR EDUCATION vs. AMADI (2013) All FWLR (Pt. 705) 210 at 220; ONYEBUCHI vs. INEC (2002) FWLR (Pt 103) 453. In the circumstances of this suit, it is my view that the proper order to make is to strike it out. Accordingly, suit NICN/OW/34/2014 is hereby struck out for constituting an abuse of court process. I make no order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge