IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE

DATE: 14TH FEBRUARY, 2018                               

 SUIT NO: NICN/YEN/89/2015

BETWEEN:

1.      AMACHREE MAC JAJA JOHN

2.      GIFT EGBOH

3.      BARIDUANEN ABERAGE

4.      KAKOR MACSON ANKRAH                                             
    Claimants/Applicants

(For themselves and representing the class of 700 workers who

were unlawfully disengaged from Rivers State Road

Traffic Management Authority, Port Harcourt).

AND
 

THE ATTORNEY GENERAL OF RIVERS STATE ----- DEFENDANT/RESPONDENT
 

REPRESENTATION:

 

Isah Seidu for the Claimants/Applicants

P. Enebeli (Principal State Counsel, Rivers State Ministry of Justice) for the Defendant/Respondent

 

RULING

This Ruling is in respect of a Motion on Notice brought pursuant to Sections 6(6)(b) and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 17(1) and (2) of the National Industrial Court Act 2006, Order 17 Rule 1(2) and Order 22 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the Court. The application which was dated and filed on 13th December 2017, is praying this Honourable court for the following reliefs:

1.     An order of Interlocutory Injunction restraining the Rivers State Government (executive arm as well as the Rivers State House of Assembly) represented by the Defendant/Respondent, its agents, messengers, privies, representatives, heirs and/or any person(s) acting consequent to the Respondent’s instigation, coaxing and/or instruction; such person(s) being and/or including the Commissioner of Police, Rivers State, his officers, the Joint Task Force, Civil Defence Corps, and/or any government authority howsoever called from taking any step, action, or process and/or attempting to take any step, action, repealing the Rivers State Road Traffic Law No. 6 of 2009 pending the hearing and determination of the substantive suit pending before the National Industrial Court, Port Harcourt Judicial Division, Coram: Honourable Justice P. I. Hamman.

2.     An Order of this Honourable Court directing parties to maintain status quo pending the final determination of the substantive suit.

3.     And for such further orders as this Honourable Court may deem fit to make in the circumstances.

The grounds for the Application are as follows:

1.     The Honourable Court has the legal duty to preserve the res of actions pending before it for adjudication.

2.     The res in this suit shall be destroyed and a return to status quo cannot be possible if the Respondent, its agents, the Rivers State Government (executive and legislative Arm) are not restrained from taking steps targeted at foisting a fiat(sic) accompli upon the Honourable Court.

3.     That a fait accompli will be foisted on the Honourable Court if the Rivers State Government represented by the Defendant/Respondent on record is allowed to repeal the Rivers State Road Traffic Law No. 6 of 2009 as the subject matter of this suit will be rendered nugatory if the Respondent is not restrained from taking steps aimed at foisting a fiat(sic) accompli upon the court thereby rendering the(sic) nugatory the outcome of the instant suit.

4.     That the Applicants’ constitutional right of access to court where aggrieved guaranteed by section 36(1) and 6(6)(a) of the 1999 Constitution (as amended) will be paralyzed if the Respondents are not restrained from taking steps targeted at foisting a fiat(sic) accompli on the court.

In support of the application is 14 paragraphs affidavit deposed to by Nwanna Odera Uju, a Legal Practitioner in the Law Firm of Messrs Isah Seidu & Co. the Solicitors to the Claimants/Applicants herein. The Claimants/Applicants also filed a Written Address dated and filed on 13th December, 2017.

The Claimants/Applicants’ Counsel Isah Seidu, in his Written Address, submitted a sole issue for determination to wit:

“Whether the Applicants are entitled in law and facts to the reliefs sought per the motion paper?”

While arguing this lone Issue, learned Claimants/Applicants’ counsel submitted that, it is a fundamental attribute of the exercise of a court’s jurisdiction that the res should be preserved pending the determination of the substantive matter. That a court should not refuse to grant an order of injunction where it is very obvious from evidence before the court that the destruction of the res may render the outcome of the proceeding nugatory; and that it is important that the res in this suit be preserved pending the determination of the main suit. See Effiom V. Ironbar (2000) 3 NWLR (Part 650) 545 at 562 para. E and Ezeokafor V. Ezeibo (1999) NWLR (Part 619) 513.

On the requirement of urgency and status quo ante bellum, learned counsel submitted that the status quo in this matter is as averred in paragraph 13 of the affidavit in support of the application; and that, the court should not allow either of the parties to present it with a fait accompli so that any order made by the court should not be rendered nugatory. See Lawal and Anor. V. Odunbi and Others (2015) 57 NLLR (Part 195) 227 at 263, paras C – F. and Ogunro V. Duke (2006) 7 NWLR (Part 978) 130 at 142, where “status quo ante bellum” was defined by the apex court of the country as “The phrase, is defined as the state of affairs existing during the period immediately preceding the issue of writ. It means the state of affairs before the beginning of hostilities.” See Registered Trustees of the Apostolic Church V. Olowoleni (1990) 6 NWLR (Part 158) 514 at 537 and Ojukwu V. Military Governor of Lagos State (1985) 2 NWLR (Part 10) 806 at 826.

It was the further submission of the learned Claimants/Applicants’ counsel that the grant of an order of injunction is at the discretion of the court and such discretion must be exercised judicially and judiciously; and that a party urging the court to exercise its discretion in his favour must put up a convincing argument showing that in fact and in law he is entitled to the relief being sought from the court.

That in this case the Applicants have placed enough materials before the court through the affidavit in support of the Application to enable the exercise of discretion in their favour. See Olumegbon V. Kareem (2002) 10 MJSC 151 at 159 D, and Azuh V. UBN Plc. (2005) 1 All FWLR (Part 245) 1036.

On the balance of convenience and whether or not there are triable issues, the learned counsel argued that from the pleadings of the parties filed before the court there are serious triable issues to be determined by the court in the substantive suit. See Kotoye V. CBN (1989) 1 NWLR (Part 98) 419; Etolue V. Okulagu (1999) 7 NWLR (Part 609) 83 and Star Paint Ind. Ltd V. Ogunlela (2000) 2 NWLR (Part 643 103 at 113.

On the requirement of undertaking as to damages, learned counsel submitted that the Claimants/Applicants herein have entered into an undertaking to pay damages should it turn out that the order of court was wrongly obtained. See Victory Merchant Bank V. Pelfaco Ltd (1993) 9 NWLR (Part 3178) 340 at 356.

While relying on section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the case of Akulega V. Benue State Civil Service Commission (2001) 12 NWLR (Part 728) 571, learned counsel submitted that, a court that fails to preserve the res will be abdicating its primary constitutional duty as the Claimants would have lost the chance to have their right decided by a court of law. See also Anyaoha V. Obioha (2014) 6 NWLR (Part 1404) 445 at 479 paras. D – G.

In conclusion, learned counsel for the Claimants/Applicants urged the court to grant the application as prayed as the Claimants/Applicants have fulfilled all the requirements for the grant of the order being sought from the court.

In opposition to the Application, the Defendant/Respondent filed an 11 paragraphs Counter - Affidavit deposed to by one Appolonia N. Otuoke Esq, a Principal State Counsel in the Chambers of the Honourable Attorney-General, Rivers State Ministry of Justice, Port Harcourt. Attached to the said Counter-Affidavit is a Written Address. These processes were dated and filed on 12th January, 2018 but deemed to be properly filed and served by order of court on 25th January, 2018.

In the Written Address filed by the learned counsel to the Defendant/Respondent P. Enebeli Esq., four (4) issues were submitted for the determination of this court, to wit:

a.     Whether the Claimants/Applicants’ application is not liable to be dismissed on the ground that the application is not related to the originating process?

b.     Whether the court can exercise jurisdiction over persons who are not parties before the court?

c.      Whether this Honourable Court can interfere in the legislative process of a House of Assembly?

d.     Whether the Claimants/Applicants have shown that they have a legal right and that they will not be adequately compensated?

On Issue One (1), learned Defendant/ Respondent’s counsel submitted that it is wrong in law to grant an application on an issue not before the court; and that in the instant case it is important to critically examine the reliefs as contained in the Statement of Facts in order to ascertain whether the reliefs in this application are the same reliefs in the substantive matter before the court.

Learned counsel reproduced the reliefs in both the Statement of Facts and the Motion on Notice for injunction and argued that they are not related. That while the Motion on Notice has raised an entirely fresh cause of action specifically relating to restraining the Defendant from repealing the Rivers State Road Traffic Law No. 6 of 2009, the claims in the Statement of Facts are challenging the disbandment of Rivers State Road Traffic Management Authority. That since every motion must be tied to the reliefs in the originating process, this application is hanging in the air and cannot stand on its own. That the Claimants/Applicants are attempting to surreptitiously change their cause of action without amending their originating process to meet the development in the case. Learned counsel referred the court to the case of A.G. Anambra State V. Okafor (1992) 2 NWLR (Part 224) at 396 at 403 where it was held as follows, “It is the law that an interlocutory order pending the determination of a suit or on appeal must relate to the issue before the court of trial.” See also Agbogu V. Okoye (2008) All FWLR (Part 414) 1494 at 1526 – 1527 Paras. G – A.

The Defendant/Respondent’s counsel therefore urged the court to resolve this issue in favour of the Defendant/Respondent.

While arguing Issue two (2), learned counsel submitted that since “the Commissioner of Police, Rivers State, his officers, the Joint Task Force, Civil Defence Corps, and/or any government authority howsoever called” who were included in the prayer in this application as persons sought to be restrained by order of court are not parties to this suit, the court lacks jurisdiction over them as they are not parties before the court.

Learned counsel referred the court to the case of Ufomba V. INEC (2017) LPELR 42078 SC, where Galinje JSC held as follows:

“The Law is settled that a court can only exercise its jurisdiction or power over parties before it and strictly in respect of the case between them upon issues raised and reliefs sought. It cannot do so concerning and to the extent it may affect persons who are not parties before it and must resist the temptation to make pronouncement to that end. The court must confine its decision to the parties and their claims.” See also Obala V. Adesina (1999) 2 NWLR (Part 590) 163 and Tende V. A. G. Federation (1988) 1 NWLR (Part 71) 506.

Learned counsel urged the court to resolve Issue two (2) in favour of the Defendant/Respondent since the order being sought from the court will affect persons who are not parties before the court and who have not been afforded the opportunity of being heard.

On Issue three (3) submitted by the learned counsel for the Defendant/Respondent for determination, it was argued that since the Motion on Notice is seeking to stop the Rivers State House of Assembly from repealing the Rivers State Road Traffic Law No. 6 of 2009, the court cannot make an order to restrain the said House of Assembly from embarking on a legislative process of repealing a law.

Learned counsel referred the court to the case of Adamawa State House of Assembly and 7 Others V. Tijani and 7 Others (2012) 8 NWLR (Part 1303) 483 at 526 Paras. D – E where the Court of Appeal held that, “The court cannot question the motive of Legislature for making any Law and is precluded from determining whether a given law made by the Legislature is a “good law” or “bad law” once that law complies with the constitutional powers of the State Assembly to make it …. it is not the case of the Respondents before the lower court that Adamawa State House of Assembly lacks the power to make laws….”

That where the legislature in the exercise of its legislative powers does not breach any constitutional provision or a statute, a court cannot adjudicate in any matter arising from or relating to the legislature because such disputes are non-justiciable and are political in nature. See also A.G. Abia State V. AG Federation (2006) 6 NWLR (Part 1005) 205 at 387, F – H; Ezeoke V. Makarfi (1982) 3 NCLR 663 and Anaekwe V. Mashasha (2001) 12 NWLR (Part 726 70 at 89, E – F.

Learned counsel therefore urged the court to resolve this Issue in  favour of the Defendant/Respondent and hold that the court cannot make an order restraining the Rivers State House of Assembly from performing its legislative functions as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).

While arguing Issue four (4), learned counsel for the Defendant/Respondent submitted that, injunction is not just granted as a matter of course but that it is only granted in deserving cases based on hard law and facts. See Secretary, Iwo L. G. V. Adigun (1992) 6 NWLR (Part 250) 723 at 750 Paras. C – D.

It was further submitted that, the grant or refusal of injunction is at the discretion of the court and based on the following well established principles:

1.     That an injunction can only be granted to support a legal right and the threatened violation of that right.

2.     An applicant must show that irreparable damage will be done to him which damages will not be adequately compensated for.

See Buhari V. Obasanjo (2004) FWLR (Part 191) 1487 at 1578, paras H – F, Ayorinde V. AG Oyo State (1996) 3 NWLR (Part 434) 20 and Ochudo V. Oseni (1998) 13 NWLR (Part 580) 103.

It was therefore submitted that, in the instant case the Claimants/Applicants in paragraph 19 of the Statement of Facts are already claiming the sum of N800, 000, 000.00 (Eight Hundred Million Naira) as general damages which clearly indicates that any alleged damage to the Claimants/Applicants is quantifiable and can be adequately compensated. That the Claimants do not have the capacity to fulfill their undertaking to pay damages having pleaded in their Statement of Facts that they are unemployed and have no means of income, hence the Defendant/Respondent is in a better position to compensate the Claimants/Applicants in the unlikely event that this suit succeeds.

It was further argued that, the Claimants/Applicants have no legal right to protect with respect to the repeal of a law of a State and accordingly no order for injunction can be made in their favour. See Ogbuehi V. Gov. Imo State (1995) 9 NWLR (Part 417) 53 at 81, and Benue State V. Devcon Limited (1988) 3 NWLR (Part 83) 407 at 422 (SC).

That the res in this matter is the disbandment of the Rivers State Road Management Authority and the salary which has purportedly accrued to the Claimants which has never been under any threat and it is unrelated to the powers of a State House of Assembly to repeal a law; and repealing a law is a legislative process and the power to repeal a law of a state is vested on the various State Houses of Assembly which cannot be taken away by the court.

The learned Defendant/Respondent’s counsel therefore urged the court to resolve Issue four (4) in favour of the Defendant/Respondent and also dismiss the application in its entirety.

In reply, the Claimants/Applicants filed 9 paragraphs Further Affidavit deposed to by Tope Samuel Apanisile, a Legal Practitioner in the Law Firm of Isah Seidu & Co., as well as a Written Address on points of law. These processes were dated and filed on 22nd January, 2018.

In the Written Address in support of the Claimants/Applicants’ Further Affidavit, learned counsel submitted that, the reliefs in the instant application are ancillary to and flow from the reliefs sought in the originating process. That the instant application is aimed at enhancing the integrity of the court as well as the rule of law hence the Claimants/Applicants have not raised any new or fresh issues in the application before the court.

While relying on the case of Lawal and Anor. V. Odunbi and Ors (2015) 57 NLLR (Part 195) 227 at 263, paras C – F, learned counsel argued that it is a principle of labour law that there shall not be any exercise of right targeted at altering the rights of an employee done by the employer during the pendency of an action.

In reply to Issue two (2) argued by the Defendant/Respondent’s counsel, learned counsel for the Claimants/Applicants submitted that, the Rivers State Government represented by the Respondent on record covers the Rivers State House of Assembly and to contend that the Rivers State House of Assembly is not before the court is misplaced and misconceived in law. See Attorney General of Anambra State V. Attorney General of the Federation (2007) 12 SCM 1, and Nig. Eng. Works Ltd V. DenAP Ltd and Anor. (2002) 7 SCM 68 AT 83.

Learned Claimants/Applicants’ counsel finally urged the court to discountenance the submissions of the Defendant/Respondent and grant the reliefs as contained on the Motion on Notice.

COURT’S DECISION:

I have carefully considered the processes, arguments and submissions as well as adumbrations of counsel on both sides and the sole issue for determination in this application to my mind is whether from the circumstances of this case the Claimants/Applicants have made out a case to be entitled to the reliefs sought in this application.

An interlocutory injunction is an equitable remedy granted before or during trial to prevent an irreparable injury from occurring before the court has the opportunity to finally determine the case before it. Its purpose is to keep the parties in an action in status quo in which they were before the judgment or act complained of; to protect the applicant against injury which damages cannot be adequate compensation if at the end of the trial the applicant succeeds in obtaining judgment in his favour. See Dekit Construction Co. Ltd. & Anor. V. Musibau Adebayo & Ors. (2010) LPELR-4030(CA)

The law is trite that interlocutory injunction is usually granted at the discretion of the court and it is not normally granted as a matter of course. Hence an applicant seeking an injunctive relief from the court which is normally fought on Affidavit evidence has the onerous burden of satisfying the court vide affidavit evidence that he is entitled to the injunctive relief(s) being sought from the court. See The Attorney-General of Anambra State V. The Attorney-General of the Federal Republic of Nigeria & 35 others (2005) 9 N.W.L.R (Part 931)572 at 634 paras. C – E.

The law has for long been settled in a plethora of cases that for an applicant seeking for injunctive reliefs to succeed, he must satisfy some conditions which must be shown in the affidavit in support of the application. In the case of Mr. Francis Temewei & Others V. Mr. Tom Benbai & Others (2015) LPELR-25131(CA), the Court of Appeal per Bada, J.C.A. held as follows on the conditions for the grant of an interlocutory injunction:

“Black’s Law Dictionary 6th Edition page 714 defined Injunction as an order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. In Adenuga Vs Odunewu (2001) 2 NWLR Part 696 Page 184, the Supreme Court per Karibi-Whyte JSC defined injunction at Page 185 as follows: “an equitable order restraining the person to whom it is directed from doing things specified in the order or requiring in exceptional situations the performance of a specific act.” The preservation of the subject matter i. e. “res” in dispute or the maintenance of the “status quo” is achieved through the judicial process of the equitable order of injunction. And since injunction is an equitable remedy, it is usually granted at the discretion of the court which must be exercised judicially and judiciously. For the court to exercise its discretion in favour of an applicant, certain conditions must exist and this must be shown in the affidavit accompanying the motion on notice. The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunction. The conditions include:

a.     Existence of a legal right

b.     Substantial issue to be tried

c.      Balance of convenience

d.     Irreparable damage or injury

e.      Conduct of the parties

f.       Undertaking as to damages.”

See also Comrade Kalu Eke John Onwuegbu & Ors. V. The Abia State Judicial Service Commission & Ors. (2016) 67 N.L.L.R. (Part 238) 40 at 50 – 51 paras. H – C; Mallam Muazu Maiwada V. Ahmadu Bello University (ABU) & 1 Or. (2012) 26 N.L.L.R. (Part 73) 1; and Cajethan Opara & 3 Ors. V. Jide Williams & 7 Ors. (2014) 49 N.L.L.R. (Part 161) 267 at 282 paras. B – H.

Looking at the Affidavit evidence in support of this application can it be said that the Claimants/Applicants have satisfied the conditions to be entitled to the reliefs being sought from the court?

While the Claimants/Applicants’ counsel has submitted and argued strenuously that the Claimants/Applicants have met the conditions of identifiable res, urgency, status quo ante bellum, triable issue, balance of convenience and have given undertaking as to damages to be entitled to the injunctive reliefs being sought from the court, the Defendant/Respondent’s counsel has countered the application by submitting that the Claimants/Applicants are not entitled to the injunctive reliefs because the persons sought to be restrained are not parties to this suit, the Claimants have no legal right and that compensation will be adequate damages for the Claimants because they have quantified the amount of damages in the sum of Eight Hundred Million Naira Only (N800, 000, 000.00) as stated in paragraph 19 of the Statement of Facts.

It is pertinent to note that as serious as this application is, there is no single exhibit attached to the application to establish the fact as claimed by the Claimants/Applicants that steps are being taken which will destroy the res in this matter thereby rendering nugatory any judgment that may be given in their favour at the end of the trial of the substantive matter. The persons sought to be restrained by an injunctive order of this court are public institutions/officials, and I belief if such threats exist there would have been correspondences between them for that purpose. Since none of such is before the court, it is not the duty of the court to speculate. The Claimants/Applicants who have the duty of placing all material evidence before the court in order to succeed in an application of this nature have failed in that regard. I so hold.

I have carefully considered the application particularly the reliefs being sought from the court and it is clear that the Claimants/Applicants are praying this court for an order of interlocutory injunction restraining not only the Defendant/Respondent herein but also other persons such as the Rivers State House of Assembly, Commissioner of Police Rivers State Command, the Joint Task Force, Civil Defence Corps and any other government authority by whatever name called from taking steps to repeal the Rivers State Road Traffic Law No. 6 of 2009 pending the hearing and determination of the substantive suit.

It is crystal clear that apart from the Defendant/Respondent, the other persons sought to be restrained by an injunctive order of the court are not parties to this suit. No steps were even taken to serve the Motion on Notice on them in order to afford them the opportunity of being heard on the application. I do not agree with the argument of the learned counsel to the Claimants/Applicants that the Rivers State House of Assembly though not a party to this suit has been adequately represented in this suit by the Defendant/Respondent. Assuming this argument is correct, could it be said that the other persons sought to be restrained who are not parties to this suit i.e. the Commissioner of Police, the Joint Task Force and the Civil Defence Corps are also represented by the Defendant/Respondent? I do not think so.

Granting this application to my understanding will amount to denying the said persons their rights to fair hearing as enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) thereby occasioning grave injustice on them.

Moreover, it is the law that a court has no disciplinary jurisdiction against a person who is not a party to a suit. It will therefore be out of place for this court to restrain the said persons who are neither parties to this suit nor served with the said application for their responses. In the case of Victor Manyo Ndoma-Egba V. Nnameke Chikwukeluo Chukwuogor & Ors. (2004) LPELR-1971(SC), the apex court per Uwaifo, JSC, held that, “It is good law that a court of law will not make an order against a person who is not a party to the cause.”

It is therefore the decision of this court that granting the injunctive relief to restrain the Rivers State House of Assembly, Commissioner of Police Rivers State, the Joint Task Force, and the Civil Defence Corps who are not parties to this suit and were not put on notice to afford them the opportunity of responding to the application will occasion injustice to them.

I have also taken into consideration the fact that the Rivers State House of Assembly is an important constitutional body created under section 90 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and saddled with the constitutional responsibility of enacting laws for the State. Even though courts of law (including this court) have the judicial powers under section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to nullify any legislation enacted by either a State Legislature or Federal Legislature which does not comply with the provisions of the Constitution, restraining orders against the Legislature are hardly granted except in deserving circumstances particularly where there is a breach of the Constitution. In this case, the Claimants/Applicants have failed to establish such deserving and exceptional circumstance to warrant this court granting the reliefs being sought in this Application and in particular against the Rivers State House of Assembly. See Attorney-General of Abia State & 2 Ors. V. Attorney-General of the Federation & 33 Ors. (2006) 16 N.W.L.R. (Part 1005) 266 at 388 paras. C – E; and Igbo Peter V. Architect George Ike Okoye & 1 Or. (2002) 3 N.W.L.R. (Part 755) 529 at 553 para. H.

Before I end this Ruling, may I state that the law has for long been settled in the case of Chief Emeka Odumegwu Ojukwu V. Military Governor of Lagos State & 2 Ors. (1985) LPELR-21274(CA), that once a matter has been brought before a court of law, parties are not to resort to self-help and take actions that will in any way prejudice the outcome of the matter before the court. Since every court guards its powers jealously, this court will not hesitate to invoke its constitutional and statutory powers to right whatever wrong that is perpetrated while this matter is in court.

 

In the circumstance and for the reasons given above, I hold that this application lacks merit as the Claimants/Applicants failed to advance sufficient reasons to warrant the grant of the application particularly against persons who are not parties to this suit and were not put on notice to respond to same.

Consequently, the application fails and same is hereby dismissed.

I make no order as to costs.

Ruling is entered accordingly.

                                        

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Hon. Justice P. I. Hamman

Judge