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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF  NIGERIA
 IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

DATE: 9TH JULY, 2026                                SUIT NO: NICN/ABJ/23M/2026

 

BETWEEN:


1.      THE COORDINATING MINISTER

OF HEALTH AND SOCIAL WELFARE

2.      THE MINISTER OF STATE FOR HEALTH

         AND SOCIAL WELFARE                                         

3.      THE FEDERAL MINISTRY OF HEALTH 

AND SOCIAL WELFARE

4.      ATTORNEY GENERAL OF THE FEDERATION

PERMANENT SECEATRY, FEDERAL 

5.      MINISTRY OF HEALTH AND                                 

SOCIAL WELFARE                                                  

6.      FEDERAL NEUROPSYCHIATRIC HOSPITAL,

ENUGU, ENUGU STATE

7.      THE MEDIACL DIRECTOR, FEDERAL

         NEUROPSYCHIATRIC HOSPITAL, ENUGU,

ENUGU STATE,

8.      DR. UNAOGU NGOZICHUKWU NNEKA

(Chime Avenue, New Haven, M.B, 01181,

Enugu)                                                          -          APPLICANTS

AND
 

PROF. MONDAY IGWE                                          -         RESPONDENT

 

REPRESENTATION:

C. M. Odanwu, Esq.; (AD- FMOJ) for Applicants

Michael O. Okorie, Esq.; with Justin Sesugh Mbalaha, Esq.; for Respondent 

 

 

RULING

 

  1. By way of Motion on Notice dated 26th day of January Appellants/Applicants instituted this this matter praying this Court for the following orders;

 

  1. AN ORDER of Court staying execution of the judgement  of the trial court and further proceedings in this suit, pending the hearing and determination of the appeal lodged against the decision of the National Industrial Court of Nigeria Abuja Division contained in the judgment of Hon. Justice E. D. Subilim delivered on 11th December, 2025, in Suit No: NICN/ABJ/130/2024 BETWEEN Prof. Monday Igwe v. The Coordinating Minister of Health and Social Welfare & 6 ORS, pending the determination of the Appellant’s Appeal against the said Judgement.

 

  1. AND FOR SUCH FURTHER AND OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

 

The grounds upon which this application is brought are as follows:

 

  1. That the National Industrial Court Abuja, delivered the above stated judgement against the Defendants/Applicants on the 11th December, 2025.
  2. That the Appellants/Applicants being dissatisfied with the said judgement of the lower court has filed a Notice of Appeal. (See Exhibit FMOH 1)
  3. That the Notice of Appeal raises substantial, serious and arguable issues of law to be tried by the Court of Appeal.
  4. That the Appellants/Applicants are Agencies of the Federal Government with statutory allocation which in the likely event of the appeal failing will have no problem complying with the ruling.
  5. That it will be in the interest of Justice to grant the application.

 

  1. In support of the Motion on Notice is a 3-paragraph affidavit deposed to by Jumoke Motilayo Falaye That the trial Court failed to properly interpret and apply the provisions of the constitution 1999 as amended before reaching the judgement and that being dissatisfied with that judgement, the Appellant has filed a Notice of Appeal against same. She equally avers that it is necessary for this Court to stay the execution of the judgement of the trial Court delivered on the 11th December,2025 pending the hearing and determination of the appeal. She went on to state that the Applicant’s Notice of Appeal raises arguable and substantial grounds of appeal which I reasonably believe would be resolved in favor of the Appellants/Applicants which according to her constitute a special and exceptional circumstances for the grant of the relief sought. That it is desirable and necessary that a stay of execution of the said judgement is granted by this Court in order not to render nugatory the outcome of the Applicant’s appeal should the appeal go in her favour. In furtherance to the above it is her averment that the Appellants/Applicants reason for this appeal bothers on wrong application and interpretation of the laws (Public Service rules and the Constitution of Nigeria 1999 and that the balance of convenience is on our part since the Appellants are Agencies of the Federal Government with statutory allocation which in the likely event of the appeal failing will have no problem complying with the said judgement. She also stated that the Applicants are keen and ready to prosecute this Appeal against the judgement of the National Industrial Court to its logical conclusion and it would be greatly prejudiced if the Respondent is allowed to execute the ruling while the Appeal is pending and the Respondent will not be prejudiced by grant of this application and no damage or irreparable damage will be suffered by the Respondent as he remains entitled to the judgement in the unlikely event that the judgement of the Court of Appeal is given in its favour. That it is in the interest of justice that this application should be granted.

APPELLANTS/APPLICANTS’ WRITTEN SUBMISSION

 

  1. Also filed alongside is a written address wherein Counsel on behalf of the Appellant/ Applicant distilled two issues for this Court determination thus;

 

  1. Whether having regard to the facts in the Affidavit in support of this Application, Applicants have shown sufficient reasons for the grant of an order staying the execution of execution of the judgement of this Honourable court delivered on the 11th Day of December,2025. 
  2. Whether the Applicant has disclosed special and exceptional circumstances to warrant the grant of this application in the circumstances of this case. 
  1. On the preliminary Learned Counsel to the Appellants/Applicants submitted that the Appellants/Applicants have met the necessary legal requirements to be granted an order staying the execution of the judgment of the trial court delivered on 11th December, 2025, pending the determination of the appeal lodged against it.

 

  1. On issue one Learned Counsel to the Appellants/Applicants submitted that an application for a stay of execution is an equitable remedy that is not granted as a matter of course but relies on the existence of special circumstances. Counsel argued that because a judgment of the court is presumed correct until the contrary is proven, the court must exercise its discretion by taking into account the competing rights of both parties. In support of this principle, counsel relied on the case of Olunloyo v. Adeniran [2001] 14 NWLR (Pt. 734) 699-709. Counsel further submitted that the Court’s discretion must be exercised judicially and judiciously, and that such discretion is properly exercised where it is shown that the appeal involves substantial points of law requiring the parties and the issues to remain in status quo, or where grounds exist suggesting a substantial and recondite issue of law on appeal where either side could succeed. To support this position, counsel cited the case of Martins v. Nicannar Food Co. Ltd [1988] 2 NWLR (Pt. 74) 75. Counsel contended that the Appellants/Applicants have shown good and sufficient reasons in their supporting affidavit, highlighting that they are keen and ready to prosecute the appeal to its logical conclusion and would be greatly prejudiced if the Respondent were allowed to execute the ruling while the appeal is pending. Conversely, counsel argued that the Respondent would not suffer any prejudice or irreparable damage because he would remain entitled to the judgment in the unlikely event that the appeal is decided in his favour. Counsel also argued that the balance of convenience is in favour of the Appellants/Applicants as they are agencies of the Federal Government with statutory allocations and will have no difficulty complying with the judgment should the appeal fail.

 

  1. On issue two Learned Counsel to the Appellants/Applicants submitted that for an applicant to be entitled to a stay of execution pending appeal, there must be a valid notice of appeal demonstrating special and exceptional circumstances. Counsel relied on the case of Leaders & Co. Ltd v. Adetona [2003] 14 N.W.L.R (Pt. 840) 431 @ 443-444. Counsel argued that Exhibit A, annexed to the supporting affidavit, displays a valid Notice of Appeal raising strong and arguable grounds of appeal, specifically regarding the denial of fair hearing, which goes to the root of the matter, as well as assertions that the judgment was against the weight of evidence and that the trial court failed to address material contradictions. Counsel cited the case of SPDC (Nig) Ltd v. Amadi [2011] 14 NWLR (Pt. 1266) 157 (SC) for the five guiding principles governing stays of execution, arguing that all five principles are satisfied in this case. Specifically, counsel contended that the trial court failed to properly evaluate the evidence and denied the Appellants their right to fair hearing by shutting its doors against them and stopping them from responding to new issues raised in the Respondent’s further affidavit. Furthermore, counsel submitted that the Plaintiff/Respondent had no legal right to protect because the doctrine of privity of contract prevented him from making claims on a contract executed between the 3rd, 4th, and 5th Defendants/Appellants. Counsel also contended that where a judgment is fundamentally flawed or suffers from a fundamental vice, the court has a duty to stay its execution, relying on U.B.C. v. Kaycee (2003) 14 NWLR (Pt. 839), Access Bank Plc v. Odubs (2020) 2 NWLR (Pt. 1707), and the remarks of Uwaifo, JSC, in Olunloyo v. Adeniran (2001) 2 N.W.L.R (Pt. 679) 391. Counsel submitted that the application was made promptly and without delay, and that the Court, in considering a stay, should not delve into the merits of the appeal but must preserve the res to avoid rendering the appeal nugatory, citing The Shell Petroleum Development Company of Nigeria Limited v. Amadi [2011] 14 NWLR (Pt. 12366) 157 and Ndaba (Nig) Ltd v. UBN Plc [2007] 9 N.W.L.R (Pt. 1040) 439 @ 466. Counsel additionally referred to Order 8 of the Rules of this Court and Order 6 Rules 1, 2, and 9 of the Court of Appeal Rules 2016 to affirm the Court's discretionary power to grant the stay.

 

RESPONDENT’S COUNTER AFFIDAVIT IN OPPOSITION TO THE APPELLANTS’/APPLICANTS’ APPLICATION

 

  1. In opposition, the Respondent filed a 13 paragraphs counter affidavit deposed to by one Peter Ogbonnaya and aver that the application is incompetent because Exhibit A is merely an unfiled, unstamped office draft. He further avers that because civil appeals from the National Industrial Court require the prior leave of the Court of Appeal under Section 243(3) of the 1999 Constitution, and no such leave has been granted, there is no competent appeal currently pending.

 

RESPONDENT'S WRITTEN SUBMISSIONS

 

  1. The Respondent in support of his Counter Affidavit filed a written address and Counsel on his behalf formulated a sole issue for the determination of this Court viz;

 

Whether it serves the interest of justice for this Honorable court to exercise its discretion to dismiss this application for stay of execution.

 

  1. Learned Counsel to the Respondent started by submitting that the Appellants/Applicants' motion for a stay of execution is incompetent, contemptuous, and lacks merit, and should therefore be dismissed in its entirety. It is equally the submission of Counsel that the Applicants have failed to satisfy the conditions precedent for the grant of a stay of execution. Counsel argued that the Applicants failed to file and attach a valid notice of appeal, evidence of payment for compilation of records, or evidence that leave of the Court of Appeal has been granted. Counsel submitted that because a stay of execution is predicated on a valid and existing appeal, the absence of a competent appeal renders the application incompetent. Counsel in support of his assertion cited the case of Mobil Oil (Nig) Ltd v. Agadaigho [1988] 2 NWLR (Pt. 77) 383, Martins v. Nicannar Food Co. Ltd [1988] 2 NWLR (Pt. 74) 75, and A.M. Co. Nig Ltd v. Volkswagen (Nig) Ltd [2012] 11 NWLR (Pt. 1312) 405 @ 415 and Order 64 Rule 13(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, arguing that the Applicants' failure to satisfy these statutory requirements makes the application grossly incompetent. Counsel pointed out that Exhibit A is merely an unfiled office draft of an intended notice of appeal, and that the Applicants have failed to show that any valid appeal has been entered. Counsel further submitted that stay of execution is an equitable relief, and an applicant must come to equity with clean hands and disclose facts with the utmost candour. He placed reliance on the case of Okafor v. Nnaife [1987] 4 NWLR (Pt. 64) 129 @ 138, Alalade v. N.B.N. Ltd (No. 2) [1997] 8 NWLR (Pt. 517) 514, and Nwosu v. A.P.P. [2020] 16 NWLR (Pt. 1749) 28. Counsel also argued that the Applicants acted in flagrant contempt of the court's judicial authority by appointing the 7th Applicant (Dr. Unaogu Ngozichukwu Nneka) as the substantive Medical Director of the 6th Applicant (Federal Neuropsychiatric Hospital, Enugu) during the pendency of the suit and while the Respondent's tenure was still running. Counsel argued that a party in contempt cannot benefit from the Court's discretionary power. He relied on the case of Lawal-Osula v. Lawal-Osula [1995] 3 NWLR (Pt. 382) 128 @ 140-143 and Globestar Eng. (Nig.) Ltd v. Malle Holdings Ltd [1999] 10 NWLR (Pt. 622) 270. Counsel relied heavily on the Supreme Court decision in Garba v. FCSC & Anor [1988] LPELR-1304 (SC) 28-29 to contend that altering the status of the res during the pendency of litigation is contemptuous and that the government must allow the judicial process to run its course.

 

  1. Furthermore, counsel cited Umar v. A.P.C. [2018] 18 NWLR (Pt. 1650) 139 to argue that where an applicant is in continuing disobedience of court orders, it is illegitimate for the court to exercise discretion in their favour. Counsel argued that the Applicants' conduct was designed to overreach the Respondent and foist a fait accompli on the court, which no court of law should endorse. He relied on the case of Sodade & Ors v. Imagie & Ors [1989] LPELR-20222 (CA) 23-24. Counsel argued that the balance of convenience weighs heavily against the grant of a stay because the Respondent's tenure elapses in March 2027, and granting a stay would effectively frustrate his reinstatement and allow the 7th Applicant to complete her tenure. Finally, counsel argued in the alternative that if the court were inclined to grant the application, it should, pursuant to Order 64 Rule 8(3) of the National Industrial Court of Nigeria Rules, order that the judgment sums awarded under reliefs G and H, totaling N40,563,090, be paid into an interest-yielding account in the name of the Chief Registrar or Deputy Chief Registrar of the Court.

 

APPELLENTS/APPLICANTS REPLY ON POINT OF LAW

 

  1. In their Reply on Point of Law, counsel addressed the Respondent's objection regarding the validity of the appeal. Counsel cited Section 9 of the National Industrial Court Act and Section 243(3) of the 1999 Constitution (as amended), alongside the supremacy provisions in Section 1(1) and 1(3) of the Constitution, to argue that civil appeals from the National Industrial Court require the leave of the Court of Appeal. Counsel submitted that the Applicants have filed a Motion on Notice seeking such leave, which constitutes a valid commencement of an appeal under Order 1 Rule 5 of the Court of Appeal Civil Procedure Rules 2021. Counsel relied on FPM v. Wahatana [2023] LPELR-60395(CA) and Skye Bank v. Iwu [2017] 6 SC (Pt. 1) 1 to show that filing an application for leave is the proper procedure, and urged the court to grant the stay to allow the Court of Appeal to determine the application for leave.

 

COURT’S DECISION

 

  1. In order to resolve the competing claims of the parties efficiently, this Court consolidates the issues raised in the respective written addresses into a single question for determination thus:

 

Whether the Appellants/Applicants have shown sufficient reasons or disclosed special and exceptional circumstances to warrant the grant of an order staying the execution of the judgment of this Court pending the determination of the appeal.

 

  1. In resolving the first issue, this Court must first interrogate the threshold requirement of a valid and pending appeal. It is a settled principle of Nigerian adjectival law that an application for a stay of execution is fundamentally ancillary to, and dependent upon, the existence of a competent, valid, and subsisting appeal. Where there is no competent appeal pending before the appellate court, an application for a stay of execution cannot stand; it is incompetent and must be dismissed. See Dingyadi v. INEC [2011] 10 NWLR (Pt. 1255) 347. In the instance case, in the Applicant’s supporting affidavit, Jumoke Motilayo Falaye deposes that "the Appellant has filed a Notice of Appeal against same" and refers to "Exhibit A" as "a copy of the Notice of Appeal against the decision of the Honourable Court." However, the Respondent's deponent, Peter Ogbonnaya, directly controverts this assertion by deposing that "contrary to paragraphs 3(d)(ii) and 3(d)(iii) of the said affidavit, it is averred that the Applicant has not filed and exhibited a valid notice of appeal... as Exhibit A is an office draft copy of the intended notice of appeal which has not been filed." An inspection of Exhibit A reveals that it is completely blank of any registry filing stamp, date, registration number, or proof of payment of filing fees. It is a mere unfiled office draft. Under Section 243(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 9 of the National Industrial Court Act, 2006, an appeal from a civil decision of this Court, other than decisions on questions of fundamental rights or criminal matters, lies to the Court of Appeal only with the leave of the Court of Appeal. This position was firmly established by the Supreme Court in Skye Bank Plc v. Victor Anaemem Iwu [2017] 16 NWLR (Pt. 1590) 24. Since the decision in question is a civil judgment ordering reinstatement and payment of emoluments, the Applicants require the prior leave of the Court of Appeal before they can competently file a Notice of Appeal. The Applicants, in their Reply on Point of Law, abandon their deponent's assertion and concede that they have only filed an application for leave to appeal before the Court of Appeal, which is yet to be granted. An application for leave to appeal is not an appeal; it is merely an application indicating an intention to appeal if leave is granted. See Mobil Oil Nigeria Limited v. Agadaigho [1988] 2 NWLR (Pt. 77) 383 and Tukur v. Government of Gongola State [1989] 4 NWLR (Pt. 117) 517. In Mobil Oil Nigeria Limited v. Agadaigho (supra), the Supreme Court had cause to held that "a stay of execution is a matter which can only be granted where there is a valid and subsisting appeal." In the absence of leave being granted and a valid Notice of Appeal being filed, there is no competent appeal pending before the Court of Appeal. Consequently, the Applicants have failed to satisfy the most fundamental condition precedent for the grant of a stay of execution, and on this threshold point, the application must fail. See also Alluminium Manufacturing Company Nigeria Limited v. Volkswagen (Nig) Ltd [2012] 11 NWLR (Pt. 1312) 405.

 

  1. Furthermore, even if this Court were to assume that a competent appeal exists, a stay of execution is an equitable and discretionary remedy, and an applicant must come to equity with clean hands. See Okafor v. Nnaife [1987] 4 NWLR (Pt. 64) 129; see also Nwosu v. A.P.P. [2020] 16 NWLR (Pt. 1749) 28. In this case, the Respondent's deponent, Peter Ogbonnaya, has deposed to positive, uncontroverted facts "that the Applicants having acted in contempt of the judicial authority of this honourable court in foisting a fait accompli on the court by the appointment of the 7th Applicant as the substantive Medical Director of the 6th Applicant during the pendency of this suit at this Honourable Court while the tenure of office of the Respondent has not elapsed, granting the stay of execution will render nugatory the benefits of the judgment won by the Respondent." The Applicants did not file any further affidavit to deny this fact. The standard principle in law is: facts in an affidavit which are not denied by way of a counter-affidavit are deemed admitted and established. See also Director-General, SSS v. Agbakoba [1999] 3 NWLR (Pt. 595) 314. It is a grave misconduct for any party, particularly government agencies, to resort to self-help during the pendency of litigation to overreach the other party and present the court with a fait accompli. See Military Governor of Lagos State v. Ojukwu [1986] 1 NWLR (Pt. 18) 621. In Garba v. Federal Civil Service Commission [1988] 1 NWLR (Pt. 71) 449, the Supreme Court held that once a dispute has been submitted to a court of law, the parties must maintain the status quo and refrain from taking any steps that would overreach the court or render its eventual decision nugatory. By appointing Dr. Unaogu Ngozichukwu Nneka as the substantive Medical Director while the Respondent's tenure was still running and the suit was pending, the Applicants acted in flagrant defiance of the judicial process. A party who has resorted to self-help and shown contempt for the judicial process cannot expect a court of equity to exercise its discretion in their favour. See Lawal-Osula v. Lawal-Osula [1995] 3 NWLR (Pt. 382) 128; see also Globestar Eng. (Nig.) Ltd v. Malle Holdings Ltd [1999] 10 NWLR (Pt. 622) 270. I therefore find that the hands of the Applicants are heavily stained with self-help, and this Court, being a court of justice, will not assist them in preserving a status quo they unlawfully altered. This I so hold.

 

  1. The balance of convenience also weighs heavily against the Applicants. Peter Ogbonnaya deposes "that the Applicant whose tenure of office, the subject of the judgment, will elapse by March 2027 will be greatly prejudiced by the grant of stay of execution of the judgment which will effectively frustrate his reinstatement as ordered by the court and enable the 7th Applicant to continue enjoying her contemptuous appointment during the pendency of the suit." The Applicants' deponent, Jumoke Motilayo Falaye, asserts "that the Respondent on the other hand, will not be prejudiced by grant of this application and no damage or irreparable damage will be suffered by the Respondent." I cannot accept this convenient assertion. The Respondent was unlawfully removed from his office as Medical Director, and this Court ordered his reinstatement on 11th December 2025. His tenure of office is due to expire in March 2027. If a stay of execution is granted, the administrative and judicial delays inherent in the appeal process will inevitably drag the matter beyond March 2027. This would mean that by the time the appeal is determined, the Respondent's tenure would have completely run out, rendering his reinstatement impossible and the judgment of this Court completely nugatory. The courts have always maintained that a stay of execution will not be granted where it would have the effect of depriving a successful party of the fruits of his judgment or rendering the judgment nugatory. See Vaswani Trading Co. v. Savalakh & Co. [1972] 12 SC 77; see also Okafor v. Nnaife [1987] 4 NWLR (Pt. 64) 129. The balance of convenience must be exercised to preserve the res, which is the Respondent's right to serve out his lawful tenure. See Onyesoh v. Nnebedum [1992] 3 NWLR (Pt. 229) 315. If the stay is granted, the Respondent will suffer irreparable damage because time cannot be wound back to restore a lapsed tenure. Conversely, the Applicants, as government agencies, will suffer no irreparable harm by reinstating the Respondent in accordance with the law.

 

  1. Finally, the credibility of the Applicants' application is completely shattered by the shocking and fatal contradictions in their own processes. While the motion is supported by an affidavit sworn to by Jumoke Motilayo Falaye, the Applicants' Written Address in Support states in paragraph 2.6 that the motion is supported by an "affidavit deposed to by Nasiru Shehu." Far more egregiously, the "Background Facts" set out in paragraphs 2.1 to 2.4 of the Applicants' Written Address describe an entirely different lawsuit, claiming the action was commenced by a Writ of Summons on 25th November 2024 to challenge a contract for "supplies of long lasting Insecticidal nets, Rapid diagnostic testing kits, Anti Malaria Drugs & Medical services" and that this Court delivered a "ruling" on "2nd of July, 2025." This Court delivered its final judgment in the instant suit on 11th December 2025, and the suit was commenced by an Amended originating processes on 28th February 2025, concerning the administrative removal of the Respondent as Medical Director. This extreme disconnect demonstrates that the Applicants' written address was prepared for an entirely different case and copy-pasted into this application without any regard for the facts of this case. A written address is meant to assist the Court by applying the law to the actual facts of the case before it. See  Obasuyi v. Business Venture (Nig) Ltd [2000] 5 NWLR (Pt. 658) 668. By presenting a written address based on completely alien facts concerning medical supplies, the Applicants have failed to address the actual issues in this case, leaving this Court with no coherent legal arguments from their counsel. A Court of law does not act on speculative or hopelessly confused processes. See Overseas Construction Co. Nigeria Ltd v. Creek Enterprises Ltd [1985] 3 NWLR (Pt. 13) 407. This gross negligence on the part of the Applicants' counsel further reinforces the conclusion that this application is completely devoid of merit.

 

  1. In the final analysis, I find that the Applicants have failed to establish any special, exceptional, or compelling circumstances to warrant the exercise of this Court's discretion in their favour. The application is incompetent, contemptuous, and a blatant attempt to run out the clock on the Respondent's reinstatement.

 

  1. On the whole, the application for stay of execution is hereby dismissed.

 

  1. Ruling is hereby entered. Cost of N500, 000.00 is awarded against the Applicants.

 

 

 

………………………………..

                                                                        Hon. Justice E. D. Subilim

                                                                                        JUDGE

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