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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 11th March, 2014 SUIT NO: NICN/ABJ/123/2013 Between: Salifu James Claimant AND Federal College of Education Okene and 2 Others Defendants REPRESENTATION Claimant present. Defendants absent; Omachi A. Dainel Esq. with E.U. Dan Miss for the claimant. R.O. Mohammed hold the brief of A.M. Atuyu SAN for the 1st defendant, Miss Otuya C. E. for the 2nd and 3rd defendants. RULING By a Motion on Notice dated the 31st of May 2013, the claimant is seeking for an interlocutory injunction restraining the defendants, their agents, privies and any person claiming through them from ejecting him from his official residence pending the determination of the substantive suit. The claimant is also seeking a restraining order on the defendant, their agent, privies and any person acting on their behalf from further harassing, intimidating and threatening him. The application which is brought pursuant to order II rules I (I) and 8 (i) and (2) and order 14 (i) (1) of the rules of this court and the inherent powers of the court as well is supported by a 17 paragraphs affidavit, seven exhibits and a written address. In the written address, claimant counsel Omachi A. Daniel Esq. formulated a lone issue for determination which is: “whether the court has jurisdiction to make an order of interlocutory injunction”. Counsel submitted that it is in the interest of justice to maintain status quo and grant injunction to prevent mischief. Counsel cited the case of Ayorinde Vs. AG Oyo state 1976 3 NWLR (Pt.434) at 20 Counsel urged the court to apply equity since the claimant has not been paid salaries; it will be inequitable to eject him and his family from his official quarters. Counsel contended that this court has the jurisdiction to put the claimant in the position he was before coming to court and referred this court to order 14 rule I of the rules of this court. Counsel finally urged the court to exercise its discretion in favour of the applicant. The claimant also filed a further and better affidavit to the motion for interlocutory injunction. The affidavit deposed to by the claimant himself has 12 paragraphs and an exhibit. This exhibit contains an ultimatum of 48 hours given to the claimant to vacate the official quarters. In Her response, counsel to the 1st defendant Miss R.O. Mohammad filed a counter affidavit of 12 paragraphs with 6 exhibits and a written address. In the written address, counsel submitted that injunction being an equitable remedy is a discretionary issue and such discretion should be exercised judicially and judiciously by the court. Counsel cited the case of NITEL PLC Vs. ICIC Ltd 2009 16 NWLR Pt. 1167 356 at 384 paragraph C-D. Counsel further urged the court to first of all establish the legal right of the applicant in the substantive suit before considering whether or not to grant or refuse injunction. Counsel cited the cases of Yussuf Vs. IITA 2009 5 NWLR Pt. 1133 18 at 2930 paragraph H-A. Edosomwan Vs. Erebor 2001 13 NWLR Pt. 730 at 290 paragraph E-F. Adewale Vs. Govt. of Ekiti State 2007 2 NWLR Pt. 1019 634 at 652 paragraph C- D. Kasunmu Vs. Shitta bey 2006 17 NWLR Pt. 1008 372 at 435 paragraph A. Counsel submitted that the claimant has no legal right in existence worthy of any protection by the court since his employment with the defendants have been terminated. Moreover, counsel contended that the claimant has not established that compensation will not be adequate for any damage that may arise in the event of the refusal of the application for injunction. It is the contention of counsel that injunctive orders to be granted must resolve the following issues. (1) Whether the appellant has raised a serious question for trial (2) If there is a serious issue for trial, whether damages is adequate compensation for temporal inconveniences. (3) If damages cannot adequately compensate applicant then the court should proceed to determine the issue of balance of convenience. Counsel submitted that the applicant has not shown or satisfied any of the above principles to merit the grant of an injunction and therefore should be refused. Counsel to the 2nd and 3rd defendants, Mrs. Otuya C.E. aligned herself with the submission of the counsel to the 1st defendant but added that she filed an 12 paragraph counter affidavit deposed to by one Eleja Bolanle Bilikis on the 8th of October 2013. Counsel urged the court to refuse the application for interlocutory injunction. I have carefully gone through the processes filed by the respective parties and their various submissions in this application for interlocutory injunction. It is a well known fact that an application of this nature do not normally create any difficulty in a trial court as the principles governing interlocutory injunctions have been well settled by a phlethora of cases by the appellate courts particularly the Supreme Court of Nigeria. The claimant in this case was a confirmed academic staff with the 1st defendant before his appointment was terminated and he was consequently given 48 hours to vacate his official quarters. The claimant has brought this application to restrain the defendants from ejecting him from his official residence pending the hearing and determination of this suit challenging his suspension and his eventual termination from the employment of the 1st defendant as a lecturer among other reliefs. In a long line of cases including: (1) Obeya Memorial Specialist Hospital Ltd Vs. AG. Federation and Another 1987 3 NWLR Pt. 60 325 at 340 (2) Kotoye Vs. CBN 1989 2 SC I (3) Ojukwu Vs. Govt. Lagos State 2007 17 NWLR Pt. 26 at 39. (4) Oyeyemi Vs. Irewole Local Govt. of Ikire, Osun State 1993 I NWLR Pt. 270 P. 462. The requirement and the principles guiding the consideration of the application for interlocutory injunction have been narrowed down and made flexible to accommodate all ramification of and tenents of justice which are: (1) Whether there are serious issues to be tried (2) The issue of balance of convenience i. e who will suffer more if the injunction is refused. (3) The issue of damages; i.e if the balance of convenience is in favour of the applicant, the court should proceed to extract undertaken as to damages from him. (4) Conduct of the parties. In Oyeyemi Vs. Irewole Govt. of Ikire Osun state, the Supreme Court has this to say. In the past, there was a need for an applicant for an order of interlocutory injunction to show that he had a prima facie case or a strong prima facie case. But today the law in relation to interlocutory injunctions as approved by the Supreme Court is that the court should be satisfied that there is a serious issue to be tried. Having thus done, if the court finds that it is a type of act that should be restrained by an injunction then it should proceed to consider the balance of convenience, and if it is satisfied that the balance was on the side of the applicant, the court should then extract an undertaking from the applicant as to damages” A cursory look at paragraphs 14, 15, 16, 17, 18, 19, and 20 of the statement of claim raises triable issues before the court. The claimants complaint filed on the 21st of May 2013 wherein claims for declaration, order for setting aside purported termination, order for reinstatement, order for payment of outstanding salaries and benefits and claims for damages also raises triable issues before the court. On the issue of balance of convenience, from the pleadings and affidavit evidence in this case, the claimant will suffer more if the application for injunction is refused. In a letter dated the 6th of June 2013 addressed to the claimant, the 1st defendant wrote in paragraph 2 as follows: “You are by this notice given 48 hours to vacate quarter and ensure to submit the keys to the chairman, staff quarters Allocation Committee” It should be noted that this letter was written to the claimant on the 6th of June 2013 when this matter was pending in this court. Moreover the record of this court shows that the 1st defendant was served with the originating and other processes of this court in respect of this suit on the 30th of May 2013. An injunction is a serious matter and must be treated seriously. See the case of Kotoye Vs. CBN (Supra). The claimant will suffer more if this application is refused. This shows that the balance of convenience is on his side or favour. It is only then I can proceed to extract undertaking as to damages. From the above principles and reasoning I am inclined to exercise my discretion in favour of the applicant. Judicial discretion according to the Supreme Court “is a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance equity and colourable glosses and pretences, and not to do according to their wills and private affections’ See Oyeyemi Vs. Ikire Local Govt. Supra at 477 paragraph B-C. Order II Rule 8 of the rules of this court says “subject to sub rule 2 of this rule, the court may, on the application of any party, make any order under the Act if it considers necessary” Section 16 of the National Industrial Court Act (NICA) 2006 has this to say also; “The court may grant an injunction in all cases in which it appears to the court to be just or convenient so to do” It is of the very essence of the proper exercise of a judicial discretion which is to be exercised judicially and judiciously that I apply the relevant rules of law or practice and according to the rule of reason and justice. The applicant has satisfied all the conditions and principles laid in Oyeyemi’s case. Consequently it is hereby ordered as follows: The defendants, their agents, privies and any person claiming through them or acting on their behalf are hereby restrained from ejecting the claimant from his official residence /staff quarters pending the hearing and determination of this suit. The defendants, their agents, privies and any person acting through them or on their behalf from further harassing, intimidating and threatening the claimant over the occupation of his official quarters pending the hearing and determination of this suit. The applicant shall undertake in writing to pay damages to the defendant if at the end of the day it is discovered that the injunction is not suppose to be granted. Ruling is entered accordingly I make no order as to cost. ------------------------------------- Hon. Justice P.O Lifu (JP.) Judge