IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

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

 

DATE: 29^TH JULY, 2026               

SUIT NO: NICN/ABJ/27M/2026

                                                

SUIT NO: NICN/ABJ/234/2025

 

 

BETWEEN:

ALA DENNIS

2. COMRADE JUSTIN ADIGWE
3. COMRADE ALEX AGWANWOR

(NATIONAL TREASURER) …                         APPELLANTS/

(ZONAL CHAIRMAN)                                   

                                                                                  

AND

                                                                                                                          

    NATURAL GAS WORKERS (NUPENG)                                                                                

      (NATIONAL PRESIDENT) …                                           RESPONDENTS                                         

    (GENERAL SECRETARY)

 

REPRESENTATION:

IKECHUKWU OKPALALECHI, ESQ., FOR THE APPELLANTS/APPLICANTS

FEMI ABORISHADE, ESQ., FOR RESPONDENTS

RULING

1. This ruling arises from a Motion on Notice dated and filed on 29 January 2026 by the Applicants brought pursuant to Order 22 Rule 1 of the Rules of this Court seeking the following orders:
2. AN ORDER OF INJUNCTION PENDING APPEAL restraining the Respondents from taking any further steps in suspending or querying the Appellants/Applicants herein on the said state of facts including retraining Appellants/Applicants from performing their official and administrative responsibilities.
3. AN ORDER OF INJUNCTION PENDING APPEAL restraining the Respondents from dissolving any Executive of any Zone, Branch or Unit of the 1^st Respondent with respect to the reasons contained in the various letters of suspension and letters of query.
4. AN ORDER OF INJUNCTION PENDING APPEAL restraining the Respondents from harassing, intimidating, cajoling any employer of the Appellants/Applicants or any of their supporters to terminate such employment or otherwise bring such employment to an end on the grounds of the reasons in the various letters of suspension and letters of query.
5. AND FOR SUCH FURTHER or other Orders as this Honourable Court may deem fit to make in the circumstance.
6. Counsel to the Respondents filed a Counter Affidavit which is accompanied with 5 Exhibits, named Exhibit 1-5. The Respondents also filed a Written Address in support of the Counter Affidavit and in opposition to the Applicants’ Motion on Notice.

BACKGROUND FACTS OF THE CASE

APPLICANT’S CASE

RESPONDENT’S CASE

EVALUATION OF EVIDENCE

6. In an application of this nature, where the Applicants seek an order of injunction pending appeal, the burden of proof rests squarely on the Appellants/Applicants to establish their entitlement to the equitable reliefs sought by placing cogent, convincing, and satisfactory material facts before this Court. The standard of proof is on a preponderance of evidence or the balance of probabilities, as is standard in civil applications. By virtue of Section 131 of the Evidence Act, 2011, the burden lies on the party who asserts a fact to prove its existence. Since the Applicants seek the exercise of this Court's equitable and discretionary jurisdiction, they must satisfy the Court that they have fulfilled the conditions precedent to the grant of an injunction pending appeal. This includes proving the existence of a competent and valid pending appeal, a threat to the res, and that the balance of convenience tilts in their favour.
7. To discharge this burden, the Applicants relied on a twenty-one paragraph Affidavit in Support, sworn to by Maryam Abubakar, who describes herself as "the secretary to Barrister Ikechukwu Okpalaelechi one of the solicitors to Appellants/Applicants." She deposed in paragraph 1 that "I have the consent of the Appellants/Applicants to make this deposition for them." She further deposed to the events of 24th July 2025, stating in paragraph 8 that "the President outside the agenda of the meeting, informed the house that Comrade Alex Agwanwor (3rd Appellant/Apoplicant)had a phone conversation with some expelled members of the union and therefore he should submit his phone for search, including the phone of Comrade Justine Adigwe (2nd Appellant/Applicant) and Comrade Queen Udeh (5th Appellant/Applicant) whom he alleged where part of those that had similar conversation with the expelled members." Maryam Abubakar deposed in paragraph 11 that "That to 3rd Appellant/Applicant's greatest surprise the 2ndRespondentimmediately pronounced against the Appellants/Applicants that they are hereby suspended to act in their administrative capacity of the union without any fair hearing." She further deposed in paragraph 18 that "That after hearing the originating summons with the challenge to the jurisdiction of the Court, on Tuesday, 27th January 2026 this Honourable Court upheld the objection and dismissed the action. The Appellants/Applicants have lodged an appeal to the Court of Appeal. A copy of the Notice of Appeal is herewith annexed and marked Exhibit A." She then deposed in paragraph 19 that "Immediately after the judgment, the 3rd Appellant/Applicant was issued another query with respect to the subject matter of this appeal. A copy of the letter is herewith annexed and marked Exhibit B." In paragraph 20, she asserted that "Unless an injunction is urgently made, the Appellants/Applicants may have lost their executive membership of the 1st Respondent, membership of the 1st Respondent and their employment because the Respondents have since been interfacing with their employers with the object of influencing their employers to terminate their employment premised on the allegations in this appeal even before the determination of this appeal." She concluded in paragraph 21 by stating that "That Appellants/Applicants undertake to compensate the Respondents damages if this appeal is found to be frivolous."
8. In opposition to the application, the Respondents relied on a twenty-one paragraph Counter Affidavit sworn to by Comrade Ndaliman Adamu, who identified himself in paragraph 1 as "I am the National Auditor of the 1st Respondent in this Suit, by virtue of which I am familiar with the facts herein deposed." Comrade Ndaliman Adamu deposed in paragraph 2 that "I have the consent and authority of the Respondents to depose to the facts in this Counter Affidavit." In response to the Applicants' claims, he deposed in paragraph 8 that "the 1st, 3rd, 4th & 5th Applicants are no longer members of the 1st Respondent as they have been expelled from the 1st Respondent by the letters dated 20/2/26 having failed to appear before the Administrative Investigative Committee on 5th & 6th February to defend themselves of the allegations levelled against them and having failed to respond to the 2nd query dated 27/1/2026 ." He annexed "Exhibits 1, 2, 3 & 4," which are the letters of query dated 25th July 2025 and 27th January 2026, alongside the expulsion letters dated 20th February 2026. Regarding the 2nd Applicant, Comrade Ndaliman Adamu deposed in paragraph 9 that "the 2nd Applicant remains a suspended officer of the 1st Respondent. The status of the 2nd Applicant as a suspended officer of the 1st Respondent is to be reviewed after he supports his denial of having authorized suits against the 1st Respondent with documentary evidence," annexing "Exhibit 5," which is NUPENG's letter dated 20th February 2026 confirming that the Union accepted his denial of wrongdoing and requested documentary evidence. In paragraph 13, he deposed that "the Letter of Query issued to the 3rd Applicant was issued after the delivery of Judgment on 27/1/2026 before the filing of the Applicants’ purported Notice of Appeal on 29/1/2026. I state further that the Query issued to the 3rd Applicant was in relation to some other conducts of the 3rd Applicant which had not been raised before and are unconnected with the subject matter of the Applicants’ purported Notice of Appeal." He vehemently denied the interfacing allegations in paragraph 15, stating "I deny the allegation that the Respondents 'have since been interfacing with their employers with the object of influencing their employers to terminate their employment …'. I put the Applicants to the strictest proof of this allegation." Lastly, he deposed to legal advice that the Applicants require the leave of the Court of Appeal to appeal, that the Notice of Appeal was filed in the absence of leave, and that "The Applicants have no pending appeal."
9. A direct confrontation of the opposing depositions reveals critical conflicts that must be resolved. First, on whether there is a competent and valid pending appeal: Maryam Abubakar asserted that the Applicants "have lodged an appeal to the Court of Appeal" and produced Exhibit A, while Comrade Ndaliman Adamu asserted that the appeal was filed "in the absence of grant of leave to appeal" and thus "The Applicants have no pending appeal." Since this Court delivered a final judgment dismissing the Applicants' suit on 27th January 2026 on non-fundamental rights issues, the right of appeal is governed by Section 243(3) of the 1999 Constitution and the National Industrial Court Act, which mandate that such appeals lie only with the leave of the Court of Appeal. The Applicants have not produced any order granting them leave to appeal. Consequently, the filing of the Notice of Appeal (Exhibit A) is a procedural nullity, and the Respondents' version that there is no competent pending appeal is established as the legally correct and credible account. Second, on the allegation of interfacing with the Applicants' employers: Maryam Abubakar deposed that the Respondents have been interfacing with employers to terminate the Applicants' employment, but she failed to provide a single specific detail, such as the names of the employers, dates, or letters. Comrade Ndaliman Adamu denied this allegation flatly and put the Applicants to the strictest proof. Because the Applicants failed to produce any corroborating evidence, their bare assertion remains unproven, and the Respondents' denial is accepted as the credible truth. Third, on the status of the Applicants in the Union: Maryam Abubakar asserted that their status as members is "seriously threatened" and they "may have lost" their executive membership, whereas Comrade Ndaliman Adamu produced Exhibits 1 to 4 showing they have actually been expelled since 20th February 2026, and Exhibit 5 showing the 2nd Applicant's conditional retention. The Respondents' version, backed by concrete, uncontradicted documentary evidence, is accepted as the true state of facts.
10. There is a fundamental gap and inconsistency in the Applicants' evidence. The Applicants' sole deponent, Maryam Abubakar, is a legal secretary who possesses no personal knowledge of NUPENG’s internal administration or the employment relations of the Applicants. While she claimed to have the "consent of the Appellants/Applicants," she completely failed to state the source of her information or the basis of her belief regarding the occurrences at the Port Harcourt meeting or the alleged employer interfaces. Under Section 115(3) and (4) of the Evidence Act, 2011, this failure severely deprives her depositions of any weight. Furthermore, a glaring gap exists in the Applicants' case because they failed to exhibit the Certified True Copy (CTC) of the judgment delivered by this Court on 27th January 2026, which is a mandatory condition precedent under Order 64 Rule 13(2)(c) of the Rules of this Court. On the contrary, the Respondents' deponent, Comrade Ndaliman Adamu, is an active national officer who deposes from personal knowledge and supports his depositions with unambiguous, uncontradicted documentary evidence in Exhibits 1 to 5.
11. The Respondents have set up a complete defense to this application, arguing that the Applicants' motion is incompetent because they have failed to fulfill the conditions precedent. Specifically, they point to the absence of a competent appeal due to the failure to obtain leave to appeal, and the failure to exhibit the CTC of the judgment as required by the Rules of Court. The Applicants' alternative explanation—that they have an inherent right to preserve the res and protect their livelihood—cannot override express constitutional and procedural rules. A court of law cannot grant an injunction pending appeal in a vacuum; the existence of a valid, competent appeal is the lifeblood of such an application. Because the Applicants' Notice of Appeal is invalid, and because they failed to attach the required judgment, their alternative explanations are legally untenable.
12. The net evidential findings of this Court are: First, the Applicants have failed to establish the existence of a valid, competent, and pending appeal before the Court of Appeal, as the Notice of Appeal (Exhibit A) was filed without obtaining the mandatory leave of the Court of Appeal, rendering it a nullity. Second, the Applicants have failed to prove the allegation that the Respondents are interfacing with their employers to terminate their employment. Third, the 1st, 3rd, 4th, and 5th Applicants have been expelled from the 1st Respondent union by letters of expulsion dated 20th February 2026 (Exhibits 1, 2, 3, and 4) for failing to answer queries and appear before the Administrative Investigative Committee, while the 2nd Applicant's suspended status is being reviewed conditionally (Exhibit 5), meaning there is no longer any pending administrative action (query or suspension) to restrain. Fourth, the Applicants failed to comply with the mandatory provisions of Order 64 Rule 13(2)(c) of the Rules of this Court by failing to exhibit the Certified True Copy of the judgment of 27th January 2026. Therefore, the Applicants have failed to discharge the burden of proof required to entitle them to the exercise of this Court's discretion in granting an injunction pending appeal.

APPELLANTS/APPLICANTS' SUBMISSIONS

 

1. Whether the Appellants/Applicants are entitled to the grant of an order of injunction pending Appeal against the Respondent.
2. Learned Counsel argued that under Order 22 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2016, a party is permitted to seek an injunction in any action or matter in which such relief is necessary, even after the conclusion of the trial. Counsel drew the attention of the Court to the supporting affidavit, which details an immediate threat of the loss of executive membership and general membership in the 1st Respondent Union, as well as the loss of employment of the Appellants/Applicants. It was submitted that a primary guiding principle for the grant of an injunction is that the res must be preserved pending the final determination of the appeal, and that a Court should not decline to grant such an order when it is obvious from the evidence that the destruction of the res would render the final outcome of the proceedings nugatory. In support of this proposition, Counsel cited the case of Effiom v. Ironbar (2000) 3 NWLR (Pt. 650) 545 @ 562 para. E. Counsel also relied on Ezeokafor v. Ezeilo (1999) NWLR (Pt. 619) 513 to argue that all courts of record possess the inherent power to preserve the res in their custody to ensure that any final order made does not expose the Court to a state of helplessness or leave the victorious party with a mere empty and pyrrhic victory. To further urge the Court to preserve the res, Counsel cited the case of Kigo Nig. Ltd. v. Holman Bros. Ltd. (1980) 5-7 SC 60.
3. On the issue of urgency, Learned Counsel submitted that the principal object of granting an injunctive order is to maintain matters in status quo until the dispute can be tried, relying on the case of Afric Mining Co. Ltd. v. N.I.D.B. Ltd. (2000) 2 NWLR (Pt. 646) 618 @ 626 para. C. It was contended that the affidavit evidence demonstrates that both the official status and the employment of the Appellants/Applicants are severely threatened, which leaves a limited timeframe within which the Court must act to safeguard the Applicants’ rights to enjoy the fruits of any eventual successful judgment, thereby preventing the appellate court's decision from being rendered futile.
4. Regarding the status quo ante bellum, Counsel argued that the damages the Appellants/Applicants stand to suffer if the Respondents are not restrained are unascertainable and consequently unquantifiable, especially as the nature of their rights and employment involves their livelihoods and the sustenance of their dependents. Counsel maintained that the Court has a duty to prevent either of the parties from presenting it with a fait accompli and must ensure its processes are not rendered nugatory. Relying on the case of Effiom v. Ironbar (2000) 3 NWLR (Pt. 650) 545 @ 563 para. D, Counsel submitted that where a party's conduct has the tendency of foisting a fait accompli on the Court, the Court will make an order returning the parties to their original status quo pending the determination of the suit. Counsel further argued that the grant of an injunction is a matter of judicial discretion which must be exercised judiciously and judicially, meaning that the Court must act in accordance with the rules of reason, justice, and the law, rather than private opinion or humor, citing the case of Olumegbon v. Kareem (2002) 10 MJSC 151 @ 159 D. It was also submitted that a party applying for the exercise of such discretionary power has a duty to present convincing factual and legal arguments to show entitlement to the relief, as held in Olumegbon v. Kareem (Supra) @ 159 E. To support the contention that the inherent power of the Court must be exercised to further the ends of justice, Counsel cited the case of Azuh v. UBN Plc. (2005) 1 All FWLR (pt. 245) 1036 @ 1046 D - E, asserting that the Appellants/Applicants have placed sufficient materials before the Court to warrant the exercise of this discretion in their favour.
5. On the balance of convenience, Counsel submitted that the balance of convenience heavily favors the Appellants/Applicants, as the damages they would suffer in the absence of an injunction are unascertainable, unquantifiable, and incapable of being recovered in monetary form because they involve multiple parties and the loss of their livelihoods.
6. Regarding the existence of a triable and serious issue, Counsel referred to the affidavit in support of the Originating Summons and the reliefs sought before the Court, arguing that these contain serious legal and factual issues that the Respondents should not be allowed to violate. In support of this, Counsel relied on Adewale v. Gov. of Ekiti State (2007) 2 NWLR (Pt. 1019) at 652, Paras C-E, which established that the Court should grant interlocutory orders to prevent the invasion of the rights of others.
7. On the requirement of an undertaking as to damages, Counsel submitted that the Appellants/Applicants have duly entered into an undertaking to pay damages should the appeal be found to be frivolous or the order wrongly obtained. Counsel relied on Victory Merchant Bank v. Pelfaco Ltd. (1993) 9 NWLR (Pt. 317) 340 @ 356 and Halsbury Laws of England, Volume 24, 4th Edition, paragraph 1077, for the proposition that an undertaking is the price an applicant must pay for the grant of an interlocutory injunction. Counsel also cited Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 to argue that the object of the undertaking is to protect both the Court and the Defendant from improper applications. Finally, Counsel cited Akulega v. Benue State Civil Service Commission (2001) 12 NWLR (Pt. 728) @ page 571 paras. D - G and referred to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria to submit that a Court which fails to preserve the res abdicates its primary constitutional duty by denying the Applicants a meaningful opportunity to have their rights determined by a court of law. In conclusion, Counsel urged the Court to grant the application in its entirety, submitting that the appeal raises serious and appealable issues, and that all necessary conditions for the grant of the injunction have been fully met.

RESPONDENTS' SUBMISSIONS

 

1. Whether the Appellants/Applicants are entitled to the grant of an order of injunction pending Appeal against the Respondents.
2. Learned Counsel argued, first, that the Applicants' supporting affidavit is incurably defective and vitiated by non-compliance with Section 115(3) & (4) of the Evidence Act, 2011. Counsel contended that the deponent, Maryam Abubakar, is not one of the Applicants but merely a secretary to one of their solicitors, and she failed to state how she became aware of the facts deposed to, who her informant was, or the time, place, and circumstances of receiving such information. It was submitted that under Section 115(3) & (4) of the Evidence Act, when a deponent deposes to beliefs derived from sources other than personal knowledge, they must set forth the grounds of belief and details of the informant. Counsel cited the case of Buhari v. Independent National Electoral Commission and 4 Others (2008) 1 All N.L.R. 159 for the proposition that where portions of an affidavit violate the Evidence Act, the entire affidavit must be discountenanced as the Court cannot pick and choose which paragraphs to accept. Counsel also cited Lagos State Govt & Anor v. NDIC & Ors (2020) LPELR-49781(CA), which relied on Josien Holdings Ltd v. Lornamead Ltd, FMG v. Sani (No. 2) (1989) 4 NWLR (Pt. 117) 624, and Edu v. Comm. for Agric. (2000) 12 NWLR (Pt. 681) 318, to argue that any paragraph of an affidavit offending Section 115 of the Evidence Act must be struck out or denied any weight. Additional reliance was placed on Osian v. Flour Mills (1968) 2 All NLR 13, Euro Bati Concept S.A. v. Tropical Industrial Co. Ltd (2001) 18 NWLR (Pt. 744) 165, and A-G Adamawa v. A-G (Fed) (2005) 18 NWLR (Pt. 958) 581 at 625 and 657-658 to emphasize that an offending affidavit cannot be acted upon. Counsel submitted that since the supporting affidavit is incompetent, the accompanying written address has no foundation and both must be struck out.
3. Secondly, Counsel submitted that where pleaded facts are not supported by evidence, they go to no issue, citing the case of Udom v. Umana (2016) 12 NWLR (Pt. 1526) 187. Counsel argued that while the Applicants' motion is predicated upon the final Judgment delivered by His Lordship, Honourable Justice E.D. Subilim, on 27/1/2026 in Suit No. NICN/ABJ/234/2025, the Applicants failed to exhibit the said Judgment. Counsel argued that the principle in Uzodima v. Izunaso & Ors (2012) vol. 211 LRCN p.153, which allows a court to look at documents in its own file, is inapplicable here because the present motion is filed under Suit No. NICN/ABJ/27M/2026, which is entirely separate from the main suit file of Suit No. NICN/ABJ/234/2025.
4. Thirdly, Counsel submitted that the Applicants have failed to satisfy the conditions precedent for the grant of an injunction pending appeal. Counsel referred to Order 64 Rule 8(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, which requires that the records of appeal must have been compiled and the appeal entered before such an application can be granted. It was argued that since the Applicants have not obtained leave to appeal, they could not have validly filed a notice of appeal or compiled and entered any record. Counsel cited Iwuagwu v. Okoroafor & Ors (2012) LPELR-20829(CA) and Nabegu v. Mantau & Ors (2020) LPELR-50956(CA) to argue that the guiding principles for an injunction pending appeal are identical to those governing a stay of execution. Relying on P.D.P v. Amin & Anor (2019) LPELR-50987(CA), which followed Ozigbo & Ors v. PDP & Ors (2009) LPELR-4822(CA) and Onuzulike v. Commissioner for Special Duties (1990) 7 NWLR (Pt. 161) 262, Counsel outlined the four conditions for granting an injunction pending appeal: the existence of a competent appeal, grounds raising substantial and recondite legal issues, exceptional circumstances, and the necessity to preserve the res. Counsel argued that none of these conditions have been met. It was contended that because the trial court's judgment relied on established Supreme Court authorities to dismiss the suit, the Applicants' grounds of appeal do not raise any recondite or substantial issues of law, and attempting to appeal such a decision borders on professional misconduct.
5. Counsel further submitted that under Section 9(1) & (2) of the National Industrial Court Act, 2006, and Section 243(2) & (3) of the 1999 Constitution (as amended), as interpreted in Skye Bank v. Iwu (2017) LPELR-42595(SC), any appeal from the National Industrial Court on non-fundamental rights issues requires the leave of the Court of Appeal. Since the subject matter of the proposed appeal does not involve fundamental rights, and no leave has been sought or granted, there is no competent or pending appeal. Counsel relied on Quadri v. State of Lagos (2013) LPELR-21471(CA), which cited Ogunremi v. Dada (1962) 1 All NLR 563, Lekwot & Ors v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22, and Akinyemi v. Professor Soyanwo (2006) 13 NWLR (Pt. 998) 496 @ 514-515, to argue that an appeal is only pending when a notice of appeal has been filed in accordance with the rules. Counsel pointed out that under Order 6 Rules 2 and 5 of the Court of Appeal Rules, 2021, a party cannot file a Notice of Appeal where leave is required without first obtaining that leave, making the Applicants' Notice of Appeal filed on 29/1/2026 completely invalid. Counsel also argued that there is no res to be preserved, as the 1st, 3rd, 4th, and 5th Applicants have already been expelled from the 1st Respondent Union by letters dated 20/2/2026 for failing to appear before the Administrative Investigative Committee and failing to respond to queries, while the 2nd Applicant remains a suspended officer whose status is under review, meaning that the suspension sought to be restrained has already been completed and cannot be arrested by an injunction.
6. Additionally, Counsel argued that the motion is incompetent because the Applicants failed to exhibit a certified true copy (CTC) of the judgment being appealed, in direct violation of the mandatory provisions of Order 64 Rule 13(2)(c) of the National Industrial Court of Nigeria Rules, 2017. Counsel cited Miss Chinye A.M. Ezeanah v. Alhaji Mahmoud I. Atta (2004) LPELR-1198(SC) (referencing Solanke v. Somefun, Dr. Aina v. Miss Aina, Ibodo v. Enarojia, Olusesi v. Oyelusi, and John v. Blakk) to emphasize that rules of court are mandatory and must be strictly obeyed. Counsel also cited Federal Republic of Nigeria v. Senator Adolphus N. Wabara & Ors (2013) LPELR-20083(SC) (referencing Nnonye v. Anyichie and Ntiero v. NPA) to submit that when a statute or rule provides a specific manner for performing an act, only that specified manner is legally sufficient. Counsel concluded by submitting that the burden of proof rests on the Applicants to place sufficient materials before the Court to justify the grant of the injunction, and since they have failed to do so, the application should be refused.

COURT’S DECISION

Whether the Appellants/Applicants are entitled to the grant of an order of injunction pending Appeal against the Respondents.

"Without prejudice to the provisions of subsection (3) of this section, any appeal from the decision of the National Industrial Court to the Court of Appeal, in respect of any other civil matter, shall be with the leave of the Court of Appeal."

28. The preceding subsection (3) of Section 243 of the Constitution limits appeals as of right to criminal causes and questions of fundamental rights under Chapter IV of the Constitution. In the present case, the Applicants’ substantive suit, Suit No. NICN/ABJ/234/2025, sought an interpretation of the 1st Respondent's Constitution regarding suspension and queries. This is an intra-union labor dispute and does not qualify as an enforcement of fundamental rights under Chapter IV of the Constitution. Consequently, any appeal against the final judgment of this Court delivered on 27 January 2026 requires the leave of the Court of Appeal as a mandatory constitutional condition precedent, a position firmly settled by the Supreme Court in Skye Bank Plc v. Iwu (2017) LPELR-42595(SC). 
29. Under cross-examination of the affidavit evidence, the Applicants’ deponent, Maryam Abubakar, stated in paragraph 18 of the supporting affidavit that "The Appellants/Applicants have lodged an appeal to the Court of Appeal. A copy of the Notice of Appeal is herewith annexed and marked Exhibit A." However, the Applicants have not produced any order of the Court of Appeal granting them leave to appeal. In the absence of such leave, the filing of the Notice of Appeal on 29 January 2026 is a procedural nullity, meaning there is no competent appeal pending before the Court of Appeal. As held in Akinyemi v. Soyanwo (2006) 13 NWLR (Pt. 998) 496, where leave to appeal is required, any notice of appeal filed without such leave first had and obtained is incompetent and cannot support an application for an injunction pending appeal. This Court cannot preserve a right of appeal that does not legally exist, and to grant an injunction in these circumstances would be to build something on nothing, which is legally impossible.
30. Furthermore, the application suffers from another fatal procedural defect. Order 64 Rule 13(2)(c) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 provides that an applicant for an injunction pending appeal shall compile and transmit the record of appeal and shall annex to the application "a certified true copy of the judgment or ruling appealed against." The Applicants in this case failed to exhibit the Certified True Copy of the judgment delivered by this Court on 27 January 2026. The rules of this Court are not ornamental; they are meant to be obeyed. On the necessity of complying with rules of court, the Supreme Court in Federal Republic of Nigeria v. Senator Adolphus N. Wabara & Ors (2013) LPELR-20083(SC) held that:

"Where a statute or rule of court provides a specific manner for performing an act, only that specified manner is legally sufficient."

31. The failure of the Applicants to supply the judgment which they seek to restrain the Respondents from enforcing or acting upon deprives this Court of the material necessary to evaluate the merits of their application. This failure is a fundamental breach of a mandatory condition precedent, which invalidates the application.
32. Even if this Court were to look past these procedural hurdles, the substantive grounds for granting an injunction pending appeal have not been established. A primary consideration in an application for an injunction pending appeal is the preservation of the res—the subject matter of the litigation—from being destroyed or decimated before the appeal is heard. In this case, the Applicants argue that their union membership, executive positions, and livelihoods are the res that must be preserved. However, the evidence before this Court reveals that the res has already been altered by completed acts. Comrade Ndaliman Adamu, deponent for the Respondents, deposed in paragraph 8 of the Counter-Affidavit that "the 1st, 3rd, 4th & 5th Applicants are no longer members of the 1st Respondent as they have been expelled from the 1st Respondent by the letters dated 20/2/26". The Respondents annexed Exhibits 1, 2, 3, and 4, which are the letters of expulsion dated 20 February 2026. Regarding the 2nd Applicant, Comrade Ndaliman Adamu deposed in paragraph 9 that "the 2nd Applicant remains a suspended officer of the 1st Respondent" and annexed Exhibit 5 showing that his status is undergoing conditional review. It is an immutable principle of equity that an injunction does not lie to restrain a completed act. In Onuzulike v. Commissioner for Special Duties (1990) 7 NWLR (Pt. 161) 262, it was held that:

"An injunction is a preventive remedy and does not lie to prevent an act which has already been carried out or completed."

33. The expulsion of the 1st, 3rd, 4th, and 5th Applicants is a completed administrative act, and their suspension, which was the subject of the original suit, has been overtaken by their expulsion. Similarly, the 2nd Applicant’s suspension is a completed act. This Court cannot grant an injunction to restrain a suspension or query that has already been executed or superseded by expulsion. To do so would be to issue an ineffectual and pyrrhic order.
34. Additionally, the Applicants have failed to establish their claims regarding immediate threats to their livelihoods. In paragraph 20 of the supporting affidavit, Maryam Abubakar asserted that "Unless an injunction is urgently made, the Appellants/Applicants may have lost... their employment because the Respondents have since been interfacing with their employers with the object of influencing their employers to terminate their employment". In response, Comrade Ndaliman Adamu, deponent for the Respondents, stated in paragraph 15 of the Counter-Affidavit: "I deny the allegation that the Respondents 'have since been interfacing with their employers with the object of influencing their employers to terminate their employment…'." The Applicants have failed to provide a single document, email, letter, or detail of any employer being contacted by the Respondents. A party who asserts a fact must prove it, as mandated by Section 131 of the Evidence Act, 2011. The bare, uncorroborated assertion of the Applicants’ deponent cannot stand in the face of a direct and positive denial by the Respondents. 
35. Furthermore, the supporting affidavit itself is highly defective. Maryam Abubakar, who describes herself as "the secretary to Barrister Ikechukwu Okpalaelechi one of the solicitors to Appellants/Applicants," has no personal knowledge of NUPENG’s internal meetings or the employment relations of the Applicants. She failed to state the source of her information or the basis of her belief regarding these occurrences, in clear violation of Section 115(4) of the Evidence Act, 2011, which provides:

"When a person deposes to his belief about any matter of fact, and the grounds of his belief are derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances upon which his belief is based, in addition to identifying his informant."

36. Her failure to identify her informants or explain how she obtained information about the Respondents’ alleged private interfaces with employers deprives her affidavit of any probative weight. An affidavit of this nature, riddled with hearsay and unsubstantiated conclusions, cannot form the basis for the exercise of this Court’s equitable discretion.
37. The Applicants' counsel, Golden Leson Awi Esq., has passionately argued that this Court has a constitutional duty to preserve the res to avoid presenting the appellate court with a fait accompli, relying on Effiom v. Ironbar (2000) 3 NWLR (Pt. 650) 545. However, the doctrine of preserving the res cannot be invoked where the applicant has failed to establish a competent appeal or comply with the mandatory rules of the court. A party cannot bypass the constitutional requirement of obtaining leave to appeal and then seek the protection of equity. Equity follows the law and cannot be used to subvert express statutory and constitutional provisions. The balance of convenience in this matter does not favor the Applicants. Since they have been expelled from the union following their failure to respond to administrative queries and appear before the investigative committee, granting an injunction to restore them to their offices pending an incompetent appeal would severely disrupt the internal administration of the 1st Respondent union. The Applicants have failed to show that they will suffer any irreparable injury that cannot be compensated by damages if their appeal eventually succeeds and is found to have merit. On the contrary, the Respondents would be highly prejudiced if they are forced to retain expelled or suspended officers in executive capacities pending the determination of an invalid appeal.
38. In the final analysis, the Applicants have failed to satisfy the legal and procedural requirements for the grant of an injunction pending appeal. They have failed to prove the existence of a competent and pending appeal; they have failed to exhibit the mandatory Certified True Copy of the judgment being appealed; their supporting affidavit is severely defective under the Evidence Act; and the acts they seek to restrain have already been completed. Consequently, this application is incompetent, lacks merit, and must be dismissed.
39. On the whole, for the reasons giving, this court hereby makes the following ORDERS:
    1. The Applicants' Motion on Notice filed on 29 January 2026 seeking an order of injunction pending appeal is hereby dismissed in its entirety.
    2. The Respondents are awarded costs of this application, assessed at One Hundred Thousand Naira (N100,000.00) only, payable by the Applicants.
40. Ruling is hereby entered.

 

……………………….

Hon. Justice E. D. Subilim

JUDGE