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Abuja --His Lordship, Hon. Justice Sanusi kado of the National Industrial Court of Nigeria, sitting in Abuja on Wednesday 24th September, 2018 in a ruling gave mandatory order of restorative injunction compelling Auchi Polytechnic, Auchi and The Governing Council Auchi Polytechnic, including the registrar to immediately reinstate the Igbinosun Ese (claimant) as chief lecturer in the department of Accountancy with all his entitlement and also condemned dismissal of the claimant from service while this case is pending in court.
The court frowns at attempt by a party to the proceedings before it to overreach his adversary and create impression that the court has been compromised. The action of the defendants/respondents shows lack of respect to this court.
In summary, the claimant commenced this suit vide general form of complaint dated 28/2/18 praying among others; AN ORDER OF INJUNCTION restraining the Defendants by themselves their servants agent and or privies however so called from further conducting any investigation, making recommendation or taking decision in respect of the allegation of the offence of gross misconduct leveled against the Claimant until APPEAL NO CA/A/797/M/2017 IGNINOSUN FRIDAY ESE V THE Rector AUCHI POLYTECHNIC, AUCHI & ORS pending at the Court of Appeal Abuja is heard and determined.
Vide motion on notice dated 27/4/18, the claimant/applicant prays for grant of a mandatory order of restorative injunction compelling the respondents including the Registrar, Auchi Polytechnic, Auchi, who issued letter dated 15th day of March 2018, dismissing the claimant/applicant and/or anyone purporting to act for or on their behalf to reinstate the Claimant as Chief lecturer in the Department of Accountancy of the 1st defendant/respondent with his Salary and allowances intact including all his entitlement as a Chief Lecturer, having been dismissed from his employment in spite of the defendants/respondents been promptly served with the main suit and the motion on Notice for interlocutory injunction dated 28th day of February, 2018 by order of this court of 6th March, 2018, which are pending before this Honourable court and have not been determined.
On The grounds that there is an application for interlocutory injunction pending before this Honourable Court that has not been determined.
In arguing the lone issue for determination, counsel contended that it is settled law that restorative mandatory injunction can be granted by court to set aside completed act and restore the parties to status quo ante bellum.
It is the submission of counsel that in this case the special circumstance that necessitated this application is that the conduct of the defendants/respondent is not just stealing a match on the claimant/applicant but has totally sniffed live out of the suit that there is nothing remaining for the court to determine as the Claimant has been relieved of his employment by the letter of dismissal.
Sunday Iyemeake, Esq; counsel for the defendants/respondent began his argument by submitting that the absence of jurisdiction to entertain the main suit robs the court of the jurisdiction to entertain the instant application.
It is submitted that the said suit was dismissed by the Honourable Court on 29th September, 2017, following the preliminary objection filed by the Defendants. In the said ruling it was held “This court cannot therefore gag or restrain the Defendants (employer) of the Claimant (employee) from exercising its power of disciplinary actions on the Claimant, to warrant the exercise of discretion of the court in reliefs being sought by the Claimant in this suit.”
It is the contention of counsel that the claimant/applicant filed this suit and also filed the instant application seeking the reliefs as reproduced above in paragraph 4.09, while the said application is still pending at the Court of Appeal, Abuja. It is submitted that it is only the Court of appeal that has the requisite jurisdiction to consider the claimant/applicant’s suit and the instant application in view of the aforesaid ruling of this court delivered on 29th September, 2017.
Counsel urged the court to decline such unholy invitation and decline jurisdiction to entertain this application.
In concluding his submission counsel urged the court to dismiss the claimant/applicant’s application.
The defendants/respondent has argued though erroneously that this kind of application seeking for restoration is unknown to law. It is to be noted that the order being sought is an appropriate order that court can make in deserving cases if the applicant convinced the court that he is entitled to it.
After painstakingly and carefully read and understood all the processes filed by learned Counsel on either side, testimonies of the witnesses called at both in chief as well as under cross examination and evaluated all the exhibits tendered and admitted, the presiding Judge Hon. Justice Sanusi Kado expressed thus;
“It is clear from the above stated facts that the defendants/respondents were duly aware of the existence of this suit and the pending motion on notice for interlocutory injunction.
“But, the defendant deliberatively in disregard of the processes of this court decided to do what the application pending before the court sought to restraint i.e dismissal of the claimant/applicant from the employment of the defendants/respondents pending the hearing and determination of this suit.
“The court frowns at attempt by a party to the proceedings before it to overreach his adversary and create impression that the court has been compromised. The action of the defendants/respondents shows lack of respect to this court.
“The mere fact that counsel is contesting the jurisdiction of court does not grant any party before the court a blanket cheaque to disregard the processes pending before the court no matter the conviction of counsel.
“The dismissal of the claimant/applicant from service while this case is pending is hereby condemned. It is an attempt by the defendants/respondents to frustrate the hearing of the suit.
For avoidance of doubt a mandatory order of restorative injunction compelling the defendants/respondents including the registrar Auchi Polytechnic who issued letter dated 15/3/18, dismissing the claimant/applicant, to immediately reinstate the claimant/applicant as chief lecturer in the department of Accountancy of the 1st defendant/respondent with all his entitlement as chief lecturer, is hereby granted.
His Lordship ruled.
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