IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE A. IBRAHIM, PhD
DATE: 30th May, 2017 SUIT NO.:NICN/EN/24/2017
BETWEEN:
ACP. SIMON IKECHUKWU ODOKORO===CLAIMANT/APPLICANT
AND
- POLICE SERVICE COMMISSION
- INSPECTOR GENERAL OF POLICE=RESPONDENTS/RESPONDENTS
REPRESENTATION:
- P. Omejie Esq. appeared for the Claimant/Applicant.
No representation for the Defendants/Respondents.
RULING
On 5th of May, 2017 the Claimant filed an Originating Summons which was amended (by Order of Court made on 26/05/2017). In the said Amended Originating Summons the Claimant prays the Honourable Court for the determination of the following questions:
- Whether the 4 years the Claimant was on officially approved study leave without pay which years were not pensionable shall count as part of his years of service in the Nigeria Police Force regard being had to Circular No. CDN/100/S.6/Vol.i/101 of December 1, 2006?
- Whether the Claimant is not entitled to benefit from the practice under which officers and men of the Nigeria Police who were granted study leave without pay had their years of service adjusted to accommodate those years they were on study leave without pay?
- Whether Section 107 of the Police Act Cap P19, Laws of The Federation 2004 is not applicable to the Claimant?
Whereupon the Claimant seeks the following reliefs against the Respondents as follows:
(1) A Declaration that the Claimant shall retire from the service of the Nigeria Police Force upon attaining the age of 60 years on 25/7/2021 by virtue of Section 207 of the Police Act Cap (sic) Laws of the Federation 2004.
(2) A Declaration that the period of 4 years (1984-1989) the Claimant was on an approved study leave without pay which were not pensionable should not be counted as part of his years of service.
(3) An order restraining the defendants either by themselves or through their agents or anybody acting for them or on their behalf from retiring the Claimant from the Service of Nigeria Police Force before the Claimant attains the age of 60 years on 25/7/2021.
The Claimant also filed a motion on notice dated 12th May, 2017 on 15th May, 2017 praying the Honourable Court for the following orders of court:
- An order of interlocutory injunction restraining the Respondents by themselves, agents, servants or anybody acting for them or on their behalf by whatever name called from taking further steps towards the retirement of the Applicant from the Nigeria Police Force pending the determination of this suit. The further steps include but not limited to, proceeding on retirement leave, transfer, withholding of salary/allowances withholding of promotion, withdrawal of orderly.
- Any other order(s) the Honourable Court shall deem fit to make in the circumstances of this case.
The ground of the application are as follows:
- The Police Act provides 60 years of age as the retirement age of members of the Police Force.
- The Claimant was born on 25/7/1961 and will be 60 years on 25/7/2021.
- The Claimant/applicant was enlisted into the Nigeria Police on 01/09/1982.
- The Claimant was on an approved study leave for years.
- The Police had a practice under which period of study leave is not included in the officer’s years of service. There is a circular to that effect and some members, including serving Commissioner of Police benefitted from it.
- The Respondents are resolved on having the Claimant/applicant retired on 01/09/2017.
- The Respondents will ask the Claimant/applicant to commence on retirement leave on 1/6/2017 unless restrained by the Court.
The application is supported by an affidavit of 32 paragraphs deposed to by the Claimant/Applicant himself. Attached to the affidavit are documents named as Exhibits A, B and C. There is also a written address in support of the application.
The Respondents did not file response to the motion on notice.
In his written address the learned applicant’s counsel formulated and argued a lone issue for the court’s determination as: whether this is a proper case in which the Honourable Court may make an order of interlocutory injunction pending the determination of this suit? In arguing same learned counsel stated that one of the factors the courts consider in determining whether to grant an interlocutory injunction is whether it would be just and convenient to grant the motion. That Section 16(1) of the National Industrial Court Act 2006 gives the court the power to grant an order on injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient to do.
That whether the application is for the grant of an order of injunction or for the appointment of a receiver or manager, the primary consideration is that it must appear to the court to be just or convenient. That in interpreting the phrase “just or convenient” used in Section 13 of the Federal High Court Act, which is in pari materia with section 16(1) of the National Industrial Court Act under which this application was brought, the Supreme Court in the case of Okoya vs Santili (1990) 3 SCNJ 83, 108 said:
The words ‘just and convenient’ in the statutory provision must be read “just, as well as convenient”. They do not mean that the court can grant an injunction simply because the court thinks it convenient, but mean that the court should grant an injunction for the protection of rights or prevention of injury according to legal principles. They confer no arbitrary or unregulated discretion on the court and do not authorize it to invent new modes of enforcing judgments in substitution for the ordinary modes.
Learned counsel continued that there is no discrimination as to who can bring the application. The provision of Section 16(1) did not make any distinction between the Plaintiff and the defendant. The Section in providing for the power to make the order was targeting the property or res in dispute to prevent it from being wasted or alienated. Either of the parties can bring the application. The primary consideration is that the res is in danger of being dissipated or alienated.
He further submitted that in determining whether it is just or convenient to make an order of interlocutory injunction, the court considers a number of factors which include:
- a)Whether a triable issue is disclosed
- b)Whether the balance of convenience is in favour of granting an injunction
- c)Whether irreparable damage will be done to the res
- d)The applicants’ undertaking to pay damages to the respondents in case it turns out that an order of interlocutory injunction should not have been made in his favour.
- e)Maintenance of status quo ante litem.
Applying these factors to the facts of this case, on whether a triable issue is disclosed, learned counsel stated that the law as it now stands is that the applicant should disclose in his claim or statement of claim or affidavit evidence that there is a triable issue. The earlier position that the applicant should show a prima facie case no longer represents the position of our law on interlocutory injunction. The applicant can do this by showing that the statement of claim or counter-claim discloses a reasonable cause of action or that the affidavit evidence discloses issues which require the court to resolve at the trial. That the Supreme Court in Onyesoh vs Nnebedum (1992) 3 SCNJ 156 held that once the matter is one that ought to be restrained by an injunction and the applicant shows that there is substantial issue to be tried, the application ought to be granted. He then referred the court to the case of Obeya M.S.H. vs A-G Federation (1987) 7 SCNJ 42.
He submitted further that from the affidavit in support of the motion on notice it has been shown that there are substantial issues to be tried and that the res is danger of being dissipated or altered permanently to the detriment of the applicants. He referred to paragraphs 13, 16, 19 and 20 of the affidavit in support of the motion. Furthermore, it has been shown that the Police Act stipulated 60 years as the age for retirement of members of the Police Force; that there is also a practice wherein the period of study leave without pay does not count in computing the period of service of members of the force who were granted study leave without pay; that a serving Commissioner of Police who was enlisted in the Police in 1977 and who went on study leave without pay is still in service. That it has also been shown that the respondents are intent on retiring the Claimant/applicant on 01/09/2017 and that he will be asked to proceed on retirement leave on 01/06/2017.
That from the foregoing paragraphs of the affidavit, the applicant has shown that there are triable issues and that reasonable cause of action has been disclosed.
On the issue of balance of convenience will be in favour of the applicant if he will suffer irreparable damage that cannot be quantified in monetary terms. This may have to be dealt with in three stages. These are:-
(i) The “governing principle” is that if the applicant would be adequately compensated by an award of damages if he succeeds at the trial, and the respondent would be able to pay them, no injunction should be granted however strong the applicant’s case.
(ii) The court must consider whether, if an interlocutory injunction is granted but the respondent succeeds at the trial, the respondent would be adequately compensated in damages which then would have to be paid by the applicant, whether the applicant would be able to pay those damages. If such damages would be an adequate remedy and the applicant would be in a position to pay them, then the respondents’ prospects of success at the trial would be no bar to the grant of the injunction.
(iii) If there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, the court must consider the wide range of matters which go to make up the general balance of convenience. These will vary from case to case. He referred to Snell’s Principles of Equity, 28th Edition, p. 640-641.
Learned counsel then submitted that the respondents cannot compensate the applicant in monetary terms if the applicant ultimately succeed at the end of this case if the respondents re allowed to ask the applicant to proceed on retirement leave on 1/6/2017 or retire him before the determination of the motion on notice the claimant/applicant would have been placed in a situation of utter helplessness and trauma.
That the Supreme Court in the case of Onyesoh vs Nnebudum (1992), supra, at 156 said that:
The object of interlocutory injunction is to protect the plaintiff against injury by violation of his legal right for which he could not be compensated in damages recoverable in action if the uncertainty were resolved in his favour at the trial.
That at the stage of considering whether to grant or refuse an application for interlocutory injunction, the court should not be fettered by conflicts, if any, in the affidavits filed by the parties. The court should be primarily concerned with preserving the res from being damaged or dissipated irremediably. This is the hallowed pronouncement of the Supreme Court in Obeya’s casewhere the Court said:
When application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the Plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be made at a time when ex-hypotheses, the existence or the right or violation of it or both is uncertain and will remain uncertain until the final judgment is given in the case.
He the referred to Obeya M.S.H. vs A-G Federation (1987) 7 SCNJ 42 at 54-55. And Adesina vs Arowolo (2005) All FWLR (Pt. 425) 1123 at 1140.
Learned counsel then considered the next factor, applicant’s undertaking as to Damages. He submitted that before the court tilt’s the balance of convenience inn favour of the applicants, the court usually extracts an undertaking as to damages against the applicants in favour of the respondents. This is the remedy which the respondents have in case it turns out at the end that the applicants were not entitled in the first instance to be granted an order of interlocutory injunction.
He referred to paragraph 28 of the applicant’s affidavit where he undertook to pay damages to the respondents. He is a serving police officer, his gratuity and pension is under the control of the respondents. Thus if this motion is granted the respondents can recover whatever he is paid as salary or allowance from his gratuity. This could be recovered en bloc. Conversely, if the court refuses the application and it turns out that it ought to have granted the motion, the applicant will be traumatized and this cannot be compensated in monetary terms. These averments satisfy the requirements of this factor of undertaking as to damages. It is the court that extracts the undertaking as to damages.
On maintenance of status quo ante litem, counsel stated that the object of an injunction is to maintain the status quo ante litem so that the res could be preserved pending the determination of the suit.
Literally, status quo ante litem means “the position of the parties before the dispute started”. He referred to Governor of Lagos State vs Ojukwu(1986) 2 SC 277, 316 at 317. That the position of the parties before the suit was filed was that the claimant is serving police officer deployed to Nnewi Anambra State as the Area Commander of Nnewi Police Area Command. Since the court is now seized of this dispute, parties should not interfere with the status quo until the final determination of the motion on notice (sic) which incidentally will determine the dispute between parties. He then summarized the submissions as follows:
- It is just and convenient to grant an interlocutory injunction in this case as res in dispute is in danger of being altered permanently.
- The applicant will suffer irreparable and unquantifiabledamage if an injunction is not granted.
- The applicant has undertaken to pay damages if it turns out at the end that he is not entitled to an order of injunction.
- Maintenance of status quo ante litem will serve the end of justice in this case so that the res can be preserved.
He then prays the Honourable Court to make an order of interlocutory injunction against the respondents their agents, privies, servants, workmen, successors-in-office or anybody whatsoever acting on their behalf in terms of his motion paper.
Since there was no process filed by the Respondents, the application of the Claimant/applicant shall only be considered on the basis of the processes filed by him. The case of the claimant/applicant is that he joined the services of the 1st Respondent on 01/09/1981. That upon his joining of the Nigeria Police he had occasion in 1988 to ask for, and was granted, study leave without pay for four years. He finished his studies and was reinstated back into his job. He continued with his work until sometime last year (2016) when he alerted the respondents that his retirement should be calculated without taking cognizance of the four years of study leave without pay that he was granted sometime in his service career. The Claimant is now approaching 35 years in the service of the 1st Respondent, which is billed to take effect on the 1st of September, 2017. He however claims that a
