➥ CASE SUMMARY OF:
Dr. Lucky Edewor v. Tommy Okon & Bashir Lawal Alade (June 30 2022, NICN/AWK/04/2022)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Cause of action;
Suit incompetency.
➥ CASE FACT/HISTORY
The claimant’s motion on notice brought pursuant to order 17 Rules 1 and 14, Order 7 Rules 1d, e or h (ii) of National Industrial Court of Nigeria (NICN) Rules 2017 (NICN Rules 2017) and under the inherent jurisdiction of this Court prays for the Orders: An order of interlocutory injunction to restrain the defendants/respondents, their privies, servants, agents, from effecting the positing of any posting of the claimant as contained on the whatsapp message sent to the claimant through one Mrs. Fumilayo Salami pending the hearing and determination of the substantive suit. An order of interlocutory injunction retraining the defendants from transferring the claimant either as alleged and or as contained in the whatsapp message or any other communication means pending the hearing and determination of the substantive suit. An order of Court directing the defendants to maintain the status quo, which is claimant functioning and performing his duty as the branch chairman, pending the hearing and determination of the substantive suit. And for such further or other orders as this Court may deem fit to make in the circumstances.
The defendants’ preliminary objection seeks the dismissal of this suit same being incompetent and for lack of jurisdiction. The grounds upon which the objection is brought are: That the action does not disclose a cause of action. That the action is incompetent for not exhausting the dispute resolution provisions of Rule 13 (iv) of the Association of Senior Civil Servants of Nigeria’s Constitution (hereafter “the Association) and the paragraph 7 (a) of the Association’s Staff conditions of service. That the action is premature and an abuse of Court process.
➥ ISSUE(S)
I. Whether a reasonable cause of action has been disclosed in this suit?
II. Whether the suit is incompetent?
III. Whether this action is an abuse of court process?
➥ RESOLUTION(S) OF ISSUES
[]
↪️ ISSUE 1: IN CLAIMANT’S FAVOUR.
[‘Having considered the facts and circumstances giving rise to this suit, and notwithstanding the factor of a measure of success, it is my determination that there is a reasonable cause of action to be considered by this Court notwithstanding its weakness or strength. I so hold. As such, this Court has jurisdiction over it.’]
.
.
↪️ ISSUE 2: IN CLAIMANT’S FAVOUR.
[‘The defendants had argued that they did not issue the letter of claimant’s posting, the Association did and the 2nd defendant merely signed the letter. The reliefs the claimant seeks from the Court are reliefs against the defendants as alter ego of the Association-real parties in interest. In the circumstance, it will be idle to think that this case is not maintainable against 1st and 2nd defendants in this Court. To strike their names out may water down or defeat the outcome of this case, assuming the claimant gets a favourable verdict. To my mind, therefore, the 1st and 2nd defendants are proper parties before this Court. I so find and hold.’]
.
.
↪️ ISSUE 3: IN CLAIMANT’S FAVOUR.
[‘The arguments of the parties in the preliminary objection dwell substantially on the substance of the main suit. The defendants should have rather focus on the substantive matter. 65. On the whole, I hold that there are triable issues for determination on merits by this Court; as such this Court has jurisdiction over it. The preliminary objection of the 1st and 2nd defendants fail and so is hereby dismissed.’]
.
.
.
✓ DECISION:
‘So, having considered the processes filed, especially the originating processes, the affidavits of both parties in support and against this application, the written addresses, the affidavit of urgency and undertaking to indemnify the defendants, it is my determination that it will be in the best interest of justice to fast track the hearing and determination of this suit. In the circumstances, it is hereby ordered that the status quo ante bellum be maintained by the parties pending the hearing and determination of the substantive suit. This order shall be subject to review as the circumstances shall permit within the next six months.’
➥ FURTHER DICTA:
⦿ POORLY WRITTEN WRITTEN ADDRESS BEFORE THE NICN
I have given due consideration to all the processes and submissions of the parties. Firstly, I need to remark that the structures of the claimant and defendants’ written addresses are littered with poorly constructed sentences and expressions. For instance, there is to be found in the address of the claimant expressions such as “the answer to the sole issue for determination as formulated by the claimants/respondents (sic)…” when there is only one claimant/respondent… “That this Court has not been diversed ((sic) of its constitutional function…” and what is “diversed” in the sentence is questionable. “The claimant has shown that what is before the Court in their (sic) claim… How can claimant’s claim be their claim? The claimant’s written address in opposition to defendants/applicants preliminary (sic) offends Order 45 Rules 2 (2), 3 (1) and (2) of NICN Rules, 2017 which stipulated that a written address shall be set out in paragraphs and numbered serially and shall contain a list of statutes or laws to be relied upon, authorities referred to together with citations of the authorities; that all written addresses shall be concluded with a numbered summary of the points raised and the party’s prayer. Order 45 Rule 3 (2) of NICN Rules 2017 concludes that failure to comply with rules 2 and 3 (1) of this Order may render the written address incompetent. This scenario is replicated in claimant’s written address in support of motion on notice. Therein, the claimant’s argument under the first item of proof states thus: “… The Claimant/Applicant going by averments in the Affidavit have shown…” Were it not on grounds of interest of justice, this Court would not have hesitated to evoke the provisions of Order 45 Rule 3 (2) of NICN Rules 2017 in sanction of the claimant. 51. In paragraph 3.9 of defendants’ written address, it is stated thus: “An action is said to be incompetent where the require factual situation that could gives (sic) rise to a cause of action do (sic) not exist…” In paragraph 3.10 lines 3 and 4 thereof, the defendants state thus: “…claimant contends that that the posting ought not to have been made and that the Court should not give effect to it and restrains (sic) the defendants… In paragraph 3.12, the defendants state thus: We submit that an employer is duty bound to issue a query where it founds (sic) the behavior of an employee unsatisfactory. It is either it found or finds, not founds. — J. I. Targema Ph.D.
⦿ CAUSE OF ACTION; PLEADED FACTS
It is trite beyond citing legal authorities that before a matter is commenced for determination by the Courts, there must be a cause of action cognizable in law, a cause of action being simply a factual situation the existence of which entitles a person to obtain from the Court a remedy against another person. See AG Federation v. AG Abia State (2001) 11 NWLR (Pt. 725) 689. Therefore, facts to be pleaded must be facts which would establish the cause of action before the Court. When such facts disclose a cause of action and not necessarily a measure of success based only on the averments in the pleading, then it can be said that there is a reasonable cause of action. See Imperial Homes Mortgage Bank v. D-VAR Consulting Ltd (2016) LPELR-40319 (CA). — J. I. Targema Ph.D.
⦿ THE ESSENCE OF INJUNCTION
The essence of injunction is to protect legal rights or recognizable rights of a person from unlawful invasion by another. As long as the acts which the Applicant complains of will result in the infringement of his rights, an injunction should issue and it is immaterial whether no pecuniary damage is proved. An injunction shall be granted where loss cannot be adequately compensated by an award of damages. Generally speaking, interlocutory injunctions are granted to preserve the res. It is the province of the law that the res should not be destroyed or annihilated before the judgment of the Court. See Akinpelu v. Adegbore & ors (2008) LPELR-354 (SC) see also Achebe v. Mbanefo & anor (2017) LPELR-41884 (CA). — J. I. Targema Ph.D.
⦿ PURPOSE OF INTERLOCUTORY INJUNCTION
On the purpose of an interlocutory injunction, the Supreme Court, in the case of The Military Administrator, Federal Housing Authority & anor v. Aro (1991) 1 NWLR (Pt. 168) 405; (1991) LPELR-3185 (SC) at 9, per Belgore, JSC held thus: “It is therefore appropriate here to state that interlocutory injunction is to mitigate the suffering of the party applying for it so that he will not be in unnecessary hardship during the pendency of the substantive suit. It is always good to prevent injustice that most invariably could not be cured properly at the end of the substantive case if it was not granted.” See also Leadmac Property & Development Ltd & anor v. Chevron Nigeria Close PFA Ltd (2016) LPELR-41408 (CA) and Wetipp Nigeria Ltd v. Ladipo & ors (2011) LPELR-24413 (CA). — J. I. Targema Ph.D.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice J. I. Targema, Ph.D.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. K. Elikwu.
⦿ FOR THE RESPONDENT(S)
S. S. Umeh.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ COUNSEL MUST POSSESS GOOD DRAFTING SKILLS
In Sheshe v. Ibrahim (2013) LPELR-22607 (CA), the Court of Appeal hold per Abiru, JCA thus: Counsel must, however, always bear in mind that one of the invaluable assets they must possess is good drafting skills. Drafting is an important tool in advocacy. A counsel who cannot present his client’s case clearly in a brief of argument cannot adequately represent the interest of his clients. An otherwise good case can be destroyed and lost by bad drafting… The need for a counsel to display proper legal training in the preparation of Court processes was emphasized by Aderemi, JCA (later JSC) in MV Arabella v. Nigerian Agricultural Insurance Corporation (2002) 15 NWLR (Pt. 791) 570. The learned Justice stated thus at page 582: “To say the least, the above five issues raised by the cross-appellant are very horrible. They do not indicate that a person with legal training has drafted them. It seems to me that an ordinary prose writer who has no learning in the profession of law will produce far better and knowledgeable issues than the above five issues. If the profession of law will not be subjected to ridicule, I think counsel of the type holding himself out as representing the cross-appellant in this matter will do well to seek the assistance of able and well learned senior members of the Bar … to always help in vetting whatever processes he prepares before filing same in the Registry of any Court.
⦿ THE FORM OF COMMENCEMENT OF ACTION DOES NOT MAKE IT INCOMPETENT
In Atago v. Nwuche & ors (2012) LPELR-19656 (SC), the Supreme Court held, per Galadima, JSC that: “The form of commencement of action does not necessarily make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons. What is most important is the question of justice of the case. See Famfa Oil Ltd v. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, Peoples Democratic Party v. Abukar (No. 2) (2007) 3 NWLR (Pt. 1022) 515 at 544-545.
➥ REFERENCED (OTHERS)
