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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 10TH FEBRUARY, 2015 Suit No. NICN/ABJ/212/2014 BETWEEN CAPT. CHIDI OKONKWO CLAIMANT AND 1. THE NIGERIAN ARMY DEFENDANTS 2. THE CHIEF OF ARMY STAFF REPRESENTATION Oghenovo O. Otemu Esq for the Claimant. Mohammed Shehu Esq for the Defendant. RULING By a Motion on Notice dated and filed 7th November, 2014 the Claimant/Applicant prays the court for the following orders:- 1. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants/Respondents, whether by themselves, their agents, servant, privies and/or otherwise howsoever called from retiring the Applicant pending the hearing and determination of this suit. 2. FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case. The affidavit is supported by 5 paragraphs affidavit deposed to by Emeka Okonkwo a litigation officer in Oghenovo O. Otemu Chambers Solicitors to the Applicant and with a written address. The defendants/respondents filed a counter-affidavit dated and filed on 11th November, 2014 of 11 paragraphs deposed to Kehinde Daniel, a litigation Secretary in Dibal Law firm Solicitor to the defendants/respondents. The counter-affidavit is also supported by a written address. On the 12th of November, 2014 parties moved their written addresses. The claimant/applicant in his address formulated a lone issue for the determination of the court, which is:- Whether the Plaintiff’s/Applicant’s have placed enough facts before this court as to entitle him to the reliefs sought. In this the claimant submitted the essence of an application for an order of interlocutory injunction is to preserve the res or maintain status quo pending the determination of the matter between the parties. That it is designed to prevent parties from facing this Honourable Court with fiat accompli or rendering the final decision nugatory. Applicant relied on the case of Kotoye V CBN (1989) 1 NWLR (Pt. 98) 419 @ 422 where the Supreme Court laid down the principles guiding an application for this nature:- That in an interlocutory application the court has to decide a number of important factors including:- a. The Applicant must show that there is a serious question to be tried i.e. that the applicant has real possibility, not a probability of success at the trial, not withstanding the defendant’s technical defence (if any). b. That the applicant must show that the balance of convenience is on his side; that is, that more justice will result in granting the application than in refusing it. c. That the applicant must show that damages cannot be an adequate compensation for his damages or injury, if he succeeds at the end of the day. d. That the applicant must show that his conduct is not reprehensible. The counsel went to discuss the points raised in the above case. The counsel then asked whether the claimant has any enforceable legal right. On this the counsel said the applicant have shown that he is a serving military officer who has the prospect of growing to be the Chief of defence staff in the Nigeria Military. That he has a right to sit for one more attempt on the said SSCQE examination to qualify him to be promoted to the rank of a major from his current rank of captain. That if the respondents are allowed to carryout their threat of compulsorily retiring him his career would have been destroyed. That the applicant have enforceable legal right over the “res” that there are issues worthy of adjudication by the court. Relying on Registered Trustees of PCN V Registered Trustee of ASN (2000) 5 NWLR (Pt. 657) 368 @ 381 Para C. Issues of balance of convenience The applicant also submitted that the balance of convenience tilts in favour of the applicant who has shown through affidavit and Exhibits in support that he is a serving Military man. He argued that the respondents will not suffer any damage if the applicant is left to remain in the army until the case is fully determined. That judging from the available evidence, it is feasible and presupposes that the res be preserved pending the determination of the substantive suit. The applicant also submitted on the issue of damages as adequate compensation. Arguing that he will be inadequately compensated by damages, if he finally succeeds at the trial of the suit as his Military career would have been destroyed. He submitted that his conduct is not reprehensible. The applicant the purpose of the application is to maintain the status quo pending the determination of the substantive suit. He argued that the court to use its discretion in his favour and grant the application. The Respondent raised this issue being which is:- Whether there is an enforceable right. On their part the defendants disagreed with the claimant on his prospect of becoming the Chief of Army Staff contending that merely being a serving Military Officer is not enough criteria to cloth him with such prospect. That having the right to sit for the SSCQE for more than one more time has not been proved before the court. They further argued that the court cannot go into the substantive issue at this stage as if done it could tantamount to deciding the case on its merit and can prejudice the right of the defendants. That the application is meant to hamstring the just exercise of the legal duties of the defendants which will wreck havoc and cause irreparable damages to the Nigerian Army. That the triable issues are better treated during trial which must not be delayed by either party in this suit. On the balance of convenience been tilt in favour of the applicant the defendants argued that this would be wrong because the applicant ought not to be in the Nigerian Army as the Nigerian Army would suffered damages that cannot be remedied and the applicant will have taken advantage of benefits that he ought not to enjoy. That at the end of the trial if the court finds that the applicant is to be paid any benefit the court has the power to order that the benefits be paid to the applicant since the defendants have satisfied the requirements of the law that the balance of convenience should tilt in favour of the defendants. They went on to submit that the applicant ought to satisfy the court that any action taken by the defendants cannot be remedied by the court which entitles him to bring this application. While on the conduct of the applicant the defendants submitted that the officer did not state that the Nigerian Army denied him the opportunity to progress in the service or any pecuniary loss in the service. They concluded that in their affidavit they have contended that application will gravely hamstring and damage the right of the defendants to exercise command and control over the applicant and indeed over officers and men of the Nigerian Army. That the application will work hardship and damage on the defendants and as such should be refused. Having carefully considered the submissions of applicant and the defendants, the issue for the court to determine is:- Whether the court can grant the applicant the reliefs he sought for. The grant or refusal of an order of interlocutory injunction is in the absolute discretion of the court, which discretion however, must be exercised judiciously having regard to all the facts and circumstance of each and every case. In deciding an application of this nature, the court must be conscious not to delve into or pre-determine the issue to be tried in the substantive suit. It is therefore necessary for the court to confine itself to those issues necessary for the disposal of this application without more. The important issues that courts usually consider before deciding whether or not to issue an order of interlocutory injunction are the existence of a legal right, maintenance of status quo, balance of convenience, conduct of the parties, inadequacy of damages and the relative strength of the case of the parties are the crystallized ingredients that an applicant for interlocutory injunction must satisfy the court upon. The six ingredients must co-exist and must be established by an applicant. If the claimant is able to show that his remedies at laws are inadequate and that there is sufficient probability that the acts which are companied of will take please to render it unjust that court should refused to intervene then the applicant is entitled to the injunction. That injunction will however, be refused as a matter of discretion if it appear to be unjust to grant it. In this suit the applicant is seeking for an order of interlocutory injunction restraining the defendants/respondents their agents, servants, privies and others whatsoever applying these principles to the instant case, I am satisfied that there are triable issues in this matter. In the case at hand, there is a affidavit before the court, the applicant raises so many issues that ought to be looked into. It is evident that the defendants are poised to exercising their right to carrying out the threat of compulsorily retiring. Again I am of the view, that if the defendants succeed in compulsorily retiring the applicant there could be no return to status quo. The applicant will suffered irreparable injury by retiring him on account that he failed the Senior Staff Course Qualifying Examination (SSCQE) pending the hearing and determination of this suit. The res in the substantive claim is the loss of his employment through the threat of the defendants to compulsorily retired him. This being the case the application is not frivolous and that this is a serious question to be looked into. The nature of injury the claimant will suffered if injunction is not granted will be much than if the injunction is not granted. It seems to me that having regard to all these facts and circumstances of this case as disclosed in the affidavit evidence the balance of convenience in the instant case will be in favour of the applicant. It is the light of the foregoing, that I am of the view that this is a proper case where the court will preserve the res during the pending of the suit. The applicant from the affidavit evidence has made a case for an injunction. For these reasons given above, the applicant’s application succeeds and it is the court order that the status quo should be maintained until the determination of this suit. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE