IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 10TH OCTOBER, 2018 SUIT NO. NICN/BEN/08/2018
BETWEEN
1. MRS. OSASUYI HELEN
2. MR. EZOMOSOGIE PULLEN PIUS
3. MISS.IYASE UWOZEE LINDA
4. MR. UNIONMWAN OSARO
5. MRS. OVU BRIDGET …CLAIMANTS/ APPLICANTS
6. MR. AMIONKHABHOR JASON
7. MR. ENEHIKHARE EGHE BENSON
8. MR. AVANRENREN NOSAKHARE ROLAND
9. MISS. OVIAWE OGOMWEN JESSY
10. R. AGBAREN ESELLOSEMHE O.P
(For themselves and on behalf of all Academic Staff, Non-Academic Staff and Students of College of Agriculture, Iguoriakhi, Edo State.
AND
1. THE COMMISSIONER FOR AGRICULTURE AND
NATURAL RESOURCES, EDO STATE.
2. THE MINISTRY OF AGRICULTURE AND
NATURAL RESOURCES, EDO STATE.
3. EDO STATE GOVERNMENT.
4. THE COLLEGE OF AGRICULTURE,
IGUORIAKHI, EDO STATE .
5. THE GOVERNING COUNCIL,
COLLEGE OF AGRICULTURE … DEFENDANTS/RESPONDENT
IGUORIAKHI, EDO STATE.
6. THE PROVOST, COLLEGE OF AGRICULTURE,
IGUORIAKI, EDO STATE.
7. THE REGISTRAR, COLLEGE OF AGRICULTURE,
IGUORIAKHI, EDO STATE.
8. THE HON.SPEAKER, HOUSE OF ASSEMBLY
EDO STATE.
9. THE HOUSE OF ASSEMBLY, EDO STATE.
REPRESENTATION
Famous Osaware for the Claimants
I.O Kadiri SSC, Edo State Ministry of Justice for the Defendants
RULING
By a General form of Compliant filed in this Court on the 20th of March 2018, the claimants claimed against the defendants the following reliefs;
1. A Declaration that the 4th defendant is a creation of Law, having been (sic) established pursuant to Edict No. 1 of 1992 with its commencement date as 27th December, 1994 and which Edict is deemed an existing Law made by the 8th and 9th defendants vide the provisions of Section 315(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria as amended,
2. A Declaration that the arbitrary closure of the 4th defendant since 8th of August 2017 by the 1st to 3rd defendants is inconsistent with the extant Law establishing the 4th defendant and therefore illegal, unlawful, null and void.
3. A Declaration that the employment of the 1st to 6th claimants with the 4th defendant is with statutory flavour and cannot be tampered with in any other manner other than in accordance with the provisions of the extant Law establishing the 4th defendant.
4. A Declaration that the closure of the premises and gate of the 4th defendant by police officers on the instruction of the 1st to 3rd Defendants and eventual prevention of the claimants and others from entering the premises of the 4th defendant on 8th August, 2017, is malicious and inconsistent with the provisions of the extant Law establishing the 4th defendant and therefore illegal, null and void.
5. A Declaration that the 7th to 9th claimants and other students of the 4th defendant are entitled to continue the pursuit of their academic programme without let or hindrance whatsoever by the defendants and in accordance with the provisions of the extant Law establishing the 4th defendant.
6. A Declaration that the arbitrary closure of the 4th defendant by the 1st to 3rd defendants and consequential inability of the 7th to 9th claimants and other students to continue with their studies is inconsistent with the extant Law establishing the 4th defendant and thereby illegal, null and void.
7. A Declaration that the 1st to 6th claimants and all other academic and non-academic staff of the 4th defendant are entitled to all their emoluments from January 1st, 2018 till the determination of their employment in accordance with the provisions of the extant Law establishing the 4th defendant.
8. An Order of this Honourable Court directing the 1st to 3rd defendants to re-open the 4th defendant and release its annual subvention as approved in the 2018 Budget for the purpose of resuming its normal academic activities in accordance with the provisions of the extant Law establishing the 4th defendant.
9. An Order of this Honourable Court restraining the 1st to 3rd defendant from victimizing the claimants or any member of Staff or any student on account of the institution of this suit.
10. An Order of perpetual injunction of this Honourable Court restraining the 8th and 9th defendants from victimizing the Claimants by abrogating, annulling or tampering with the extant Law establishing the 4th defendant with the intention of permanently closing same pending the determination of this suit and thereafter.
11. An Order of perpetual injunction of this Honourable Court restraining all the defendants, their agents, privies and assigns from further arbitrarily closing down the 4th defendant in a manner inconsistent with the extant Law establishing the 4th defendant or in any other illegal manner whatsoever.
The claimants filed their statements of facts and other accompanying processes. The claimants on the 23rd May 2018 filed an Ex-parte Application seeking for leave to sue the defendants in a representative capacity for themselves and on behalf of the Academic Staff, Non-Academic Staff and Students of the College of Agriculture, Iguoriakhi, Edo State. This Court on the 7th of June 2018 after a due consideration of the application and arguments filed by learned Defence Counsel granted the application pursuant to Order 13 Rules 1 & 11 of the National Industrial Court Rules, granting leave to the claimants to sue in a representative action.
The claimants also on 23rd May 2018 filed a Motion on Notice brought pursuant to Order 17, Rule 1 and Order 22 Rules 1 & 2 of the rules of this Court 2017 and under the inherent jurisdiction of this Court for the following reliefs:
1. A Mandatory Order of this Honourable Court directing the 1st, 2nd, 3rd, 5th, 6th and 7th defendants/respondents to forthwith re-open the 4th defendant for the resumption and continuation of normal academic activities in accordance with the provisions of the extant law establishing the 4th defendant pending the determination of the substantive suit.
2. An Order of Interlocutory injunction restraining the 1st, 2nd, 8th and 9th defendants/respondents, their agents, privies, representatives or abrogating, annulling or tampering with the extant law establishing the 4th defendant (Edict No. 1992) with the intention of victimizing the claimants by temporarily or permanently closing down the 4th defendant in any manner whatsoever pending the determination of the substantive suit before the Honourable Court.
3. A Mandatory Order directing 1st, 2nd, 3rd and 4th defendants/respondents to pay the salaries and emoluments of 1st to 7th claimants/applicants and all other emoluments of the 4th defendants due and payable from January 2018 and on a continuous basis thereafter pending the determination of the substantive suit before the Honorable Court.
4. An Order of Interlocutory Injunction restraining the 1st, 2nd, 3rd and 5th defendants/respondents from punitively expelling or suspending the 8th to 10th claimants/applicants or any other student whatsoever outside the provisions of the establishment Law of the 4th defendant on account of the institution of this suit pending the determination of this suit by this Honorable Court.
5. An Order of Interlocutory injunction restraining the 1st, 2nd , 3rd and 5th defendants/respondents from punitively terminating or dismissing the 1st to 7th claimants/applicants or any other staff whatsoever outside the provisions of the establishment law of 4th defendant on account of this suit of this Honourable Court.
6. And for such further Order (s) that the Honorable Court may deem fit to make in the circumstances
In support of the Motion was filed a fifty (50) paragraph affidavit deposed to by Unionmwan Osaro (the 4th Claimant/Applicant). Also filed is a written address wherein a sole issue for determination was formulated:
Whether it is in the interest of Justice to grant this application
Counsel submitted that since the closure of the 4th defendant, valuable academic calendar has been lost; the students who were eligible for National Youth Service Corps had their hopes dashed. He continued that no amount of damages even if this suit is resolved in their favour can be sufficient compensation; he placed reliance on the Supreme Court decision in Orji v. Zaria Ind. Ltd [1992] NWLR (Pt. 216) P.124 at 128, Obeya Memorial Hospital v. A-G. Federation [1987] 3 NWLR (Pt.60) P.325 at 328. He argued that for a grant of an application of this nature, the fundamental principles stated in Onyesoh v. Nnebedun [1992] 3 NWLR (Pt. 229)P.315 at 318 must be followed and that there is a legal right to be protected by the Court that by Section 4(f), 21 and 24 of the College of Agriculture Law Iguroiakhi, Edo State, the claimants/applicants who are students and staff of the 4th defendant/respondents have existing legal right vested in them by the aforesaid law. He argued further that from the entire affidavit in support of this application, the conduct of the defendants/respondents have been unjustifiable and against the provision of the establishment law of the 4th defendant. That more worrisome is the fact that the 1st-3rd defendants have habitually threatened the claimants/applicants not to ventilate their grievance in a Court of Law, that they have threatened that if the applicants dare do that they would ensure that the 8th and 9th defendants/respondents abrogate the said establishment law and close down the institution permanently to the detriment of the applicants and other affected persons. Counsel continued that the threat is not only against public policy but strikes at the heart of the fundamental right of the applicants to approach the Court for the resolution of any dispute as protected by Section 6 of the Constitution (as amended). He also stated that from the affidavit evidence deposed to by the claimants/applicants, their legal right to exist as staff and students respectively has been trampled upon by the defendants, especially the 1st , 2nd and 3rd defendants/respondents. The Closure of the 4th defendant is an inestimable wrong done as the effect is that the students are unable to complete their studies for the purpose of acquiring the certificate. Furthermore, that the staff of the college has not received their salaries and other entitlement till date following the closure and that nothing best illustrates the bad faith involved in the closure of an institution merely because there is a plan to renovate same. He contended that the defendants/respondents are toying with the lifespan of citizens of Nigeria by their arbitrary decision to close the 4th defendant without making any alternative venue available for the continuation of the lawful business of the college and at the peril of the students and staff respectively. Counsel was of the opinion that all that the claimants/applicants are to show is that there are serious issues to be tried that the balance of convenience is on their side that their injury and that of the defendants/ respondents are not retrained thus cannot be adequately undertaking as to damages. He continued that a careful look at the averments contained in the affidavit would show that the Applicants have demonstrated before the Court that their injury cannot be adequately compensated by damages and that it is so serious that only a restoration by re-opening the 4th defendant would meet the justice of the case. That the Directive of the 1st-3rd defendants to close the 4th Defendant was simple and summary and can be easily reversed without occasioning any loss to the defendants in any manner whatsoever. He concluded that the application is equitable and at the discretion of the Court and such discretion must be exercised judicially and judiciously, he cited Aboseidehyde Lab Plc v. U.M.B Ltd [2013] 13 NWLR (Pt.1370) P.91 at 95, Abdullah v. Govt. of Lagos State [1989] 1 NWLR (Pt.97)P. 356 at 359.
The Defendants on the other hand entered Conditional Appearance on the 28th June 2018 and filed their joint Statements of Defence, Written Statement on Oath and documents to be relied upon at the trial.
The Defendants filed a Counter-Affidavit in opposition to the Claimants’ Motion on Notice on the 28th of June 2018 deposed to by One Jude Ekpu, a Chief Agricultural Officer at the Edo State Ministry of Agriculture, Benin City and accompanied same with a written address wherein they also framed a sole issue for determination was raised:
Whether it is in the interest of Justice to grant this Application?
Counsel argued that the answer to the issue is in the negative and stated that it will rather be more in the interest of justice for this Court to order accelerated hearing of this suit in the circumstances of this case. He continued that the laws enjoins the Court to be circumspect with this type of application so that the substantive suit will not be determined at this interlocutory stage, he referred to the case of Williams v. Dawodu [1998] 4 NWLR (Pt.88) 210, Kotoye v. Central Bank of Nigeria [1989] 1 NWLR (Pt.98) 419, Obeya Memorial Specialist Hospitals v. A.G Federation supra. He continued that the act being complained of in this application is already a completed act; same was executed by the Defendants on 8/8/2017/, and that the Court cannot exercise his discretion to restrain the act which is already completed, he cited Central Bank of Nigeria v. Industrial Bank Ltd (Merchant Bankers) [1997] 9 NWLR (Pt. 522) 712, Alon v. Dandrill (Nig) ltd [1997] 8 NWLR (Pt. 517) 495 at 501, paragraph H-A. Counsel continued that the applicants must also furnish this Court of their legal right capable of being protected in this suit, the effect of this is that the Claimants have no legal right to protect in this suit, he relied on NBM Bank Ltd v. Oasis Group Ltd [2005] 3 NWLR (Pt.912) Ratio 1. He concluded by urging the Court to tilt in favour of ordering that accelerated hearing be had in the stead of reliefs of this application.
The claimants on the 2nd of July, filed a 12 paragraph Further Affidavit deposed to by one Unionmwan Osaro.
Claimants/Applicants filed a Reply on Point of Law to the defendants/respondents’ Written Address in support of their counter affidavit filed on 28th June, 2018. Counsel argued that the legal requirements for the grant of an interlocutory injunction and mandatory injunction are similar in some respects. He continued that the applicants have met the requirements for the grant of a mandatory injunction as set out in Kwankwaso V. The Governor of Kano State [2006] LPELR 11617 CA also that the defendants/respondents have in no way denied or joined issues with the claimants/applicants as for the requirements of mandatory injunction are concerned. The applicants are therefore unchallenged as a mandatory injunction is not preventive but restorative. He noted that there is nothing in the counter-affidavit which refers to an alternative location for the 4th defendant/respondents during the revamping process. The counter-affidavit does not explain how workers with statutory flavour can be compensated without being allowed to resume work. He continued that the respondent have failed to explain what would happen to academic activities of students while the alleged revamping is going on and also that they have not made any materials available to the Court as to how they closed the 4th defendant/respondents having regard to its establishing law. On the question of whether the acts sought to be restrained have been completed, Counsel submitted that the applicants have not been expelled or suspended from school and that the applicants have not been terminated or dismissed from their jobs as at today amid that the applicants cannot be dismissed or terminated outside the provisions of its establishment law. Counsel also contended that the reliefs contained in the Motion Paper are necessary, is the Res in the suit are to be preserved. The said reliefs are brought in the cause of an action originated by the issuance of a Complaint supported by other originating processes which would mean that there would be full trial of issues by the Honorable court. Furthermore, it was the submission of Counsel that the argument of the defendants/respondents that the reliefs on the Motion Papers are similar to those on the Complaint and should not be granted may have been relevant if this suit was initiated by an originating summons to be determined by Affidavit evidence. That the submission of the defendants/respondents that the subject matter of this action is statute barred is incorrect because the injury complained about is ongoing. The Closure is still in existence and since February 2018, The Applicants who are valid staff of the 4th defendant have not been paid their remuneration. The Students have not resumed their lectures and even the few sent on industrial training were wrongly sent and their allowances remained unpaid. Counsel noted that it is the duty of the 4th defendant/respondent and not that of the 1st-3rd respondent to send students on Industrial Training, he relied on the Court of appeal decision in NNPC v.Mallam Idi Zaria &Anor [2014] LPELR-22362 (CA) and also argued that a public officer can be sued outside the period of three months if at all times material to the commission of the Act complained of, he was acting outside his statutory duty, he cited Ibrahim v. JSC [1998] 14 NWLR (Pt,58)P.32 and concluded by reiterating the position of the law in Abdullah v. Govt of Lagos State [1989] 1 NWLR (Pt.97) P.356 at 359 that when the conduct of one of the parties has the tendency of foisting on the Court a fait accompli, the Court may make an order which will have the effect of returning the parties to the original status quo pending the determination of the application.
After a careful consideration of the processes filed before the Court; the Motion on Notice dated 28th June, 2018 as well as the accompanying processes forthwith, the Counter-Affidavit filed by the Defendants/Respondents on the 28th June 2018 and the Reply on Point of Law filed by the Claimants/Applicants. It is in this light I adopt the sole issue formulated by both parties in their respective written addresses to arrive at a just decision of this application.
It is imperative to give a brief background into this case; from the fact before the Court, it is evident that the claimants/applicants are the Academic Staff, Non-Academic Staff and Students of the College of Agriculture, Iguoriakhi, Edo State respectively suing in a representative action on behalf of all the Staff and Students of the Institution. It is the Contention of the claimants/applicants that the action of the 4th defendant/respondent who had arbitrary and unlawfully closed down the institution since the 8th of August 2017 after a team of the 3rd defendant /respondent’s officials led by the Governor of Edo State inspected the facilities of the Institution on or about the 7th August 2017, had rendered the students idle and staff jobless and in hardship as they have not earned their salaries since January 2018. The defendants/respondents on the other hand argued that the purpose of the inspection by the team led by the Governor of Edo State was for the sake of informing the claimants/applicants of the dire need to revamp the School by closing same temporary to put good structures in place, and the claimants were informed of this activity on the 7th August 2017 vide a Report of the investigative panel on the College of Agriculture Iguoriakhi.
Now, it is the contention of defendants/respondents in the Counter-affidavit filed on the 28th June 2018 that the claimants’ claim is statute barred and that the act being sought to be restrained in this application has already been executed by the defendants/respondents, counsel continued that the contract of service with the Claimants has been determined and same has received their terminal benefits of a month payment in lieu of notice from the 3rd defendant before the existence of this suit. The applicants/ claimants on the other hand argued in their Reply on Point of Law that the injury complained of is on-going thus, the matter is not statute barred, that the closure of the 4th defendant/respondent is still ongoing and that since February 2018, the applicants who are valid staff of the 4th defendant have not been paid their remuneration. However, the defendants/respondents argued further that the contract of service with the claimants has been determined and same has received their terminal benefits of a month salary in lieu of notice from the 3rd Defendant, before the existence of this suit.
The authorities are settled and clear on the determination of whether or not an action is statute-barred, and this is one touching on the jurisdiction of the Court, in other words, statute of limitation is impari materia with jurisdiction, hence when such an issue is raised the Court has to consider it first and determine whether or not it has the vires to sit on the case before proceeding with same. The law is that a cause of action is said to be statute barred if in respect of its proceedings when the period laid down by the limitation law has elapsed. See the case of Egbe V. Adefarasin [1987] 1 NWLR (Pt.47) 1 at 20, Udoh Trading Company ltd V. Abere [2001] 11 NWLR (Pt. 723) 14. The period of limitation is determined by considering the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave rise to the cause of action and by comparing the date with the date on the writ of summon, see the cases of Hassan &Ors V. Bornu State Government &Ors [2016] LPELR -40250 (CA), Military Administrator, Ekiti State V. Aladeyelu [2007] ALL FWLR (Pt. 369) 1195 at 1218-1219. See also section 2(a) of the Public Officers Protection Act, Cap 41, LFN 2004 which seeks to protect a public officer from prosecution after three (3) months preceding the date of the cause of action. It is apparent that the defendants/respondents in this suit are public officers, being government bodies created by law thus they can take protection under the Act, See the cases of Ibrahim V. JSC Kaduna State [1998] 14 NWLR (Pt. 584) at 132, Akeem V. University of Ibadan [2003] 10 NWLR (Pt. 829) 584. Now, in deciding whether or not the suit is statute barred, the series of fact that gave rise to the claimants’ case must be examined and times begin to run from the date the cause of action arose. It is obvious that the cause of action arose when the 4th defendant was shut down on the 8th August 2017 and the matter was filed before this Court on the 28th March 2018, a comparism of both dates shows that a period of seven (7) months, 20 days had lapsed before the claimants took out a Complaint in this Court. The position of the law is clear that an action cannot be brought after the expiration of the three (3) months rules prescribed by the Act, this is to protect the public officers from being distracted by litigation in the course of pursuit of their duties, See Ogbeifo V. Osifo [2007] All FWLR (Pt. 365) at 566-567. However, the Apex Court in litany of cases has expounded and propounded on exceptions to the protection of Public Officers as provided for under section 2(a) of the Public Officers Protection Act, Cap 41, LFN 2004 (domesticated as Public Officer Protection Law of Edo State) to include cases of continuance of damage or injury, a situation where the person relying on it acted outside the colours of his office or outside his statutory or constitutional duty, cases of recovery of land, breach of contract, claims for work and labour done and good faith. See Kwara State Pilgrims Welfare Board v. Baba [2018] LPELR-43912SC. It is imperative to state at this juncture that, the purpose of the Public Officer protection Law is to shield public officers who act in good faith strictly within the confines of their official duties.
The applicants/claimants argument that the 4th defendant is still shut down and their salaries remained unpaid is a case of continuance of damage, and the limitation law clearly recognizes the exception of the continuance of damage or injury as action can be brought on the cessation of the three (3) months rule. Continuance of injury or damage means continuance of legal injury, and not merely continuance of the injurious effect of legal injury, See Micheal Obiefuna V. Alexander Okoye [1961] All NLR 257 at 360 and 362. The test on “Continuance of damages or injury” has been laid down by the Supreme Court in Attorney General of Rivers State V. Attorney General of Bayelsa State & Anor [2013] 3 NWLR (Pt. 1340) 123 at pages 148-149, paras H-A, Galadima, J.S.C expounded thus:
“In cases of continuance of damages or injury, the Act permits action to be brought on the cessation thereof outside three months. From the Amended Statement of Claim and as equally deposed to in his Counter-affidavit, the Plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has nor ceased the Defence is not available to the 1st Defendant..”
See also Aremo II V. Adekanye [2004] All FWLR 2113 at 2132 and Battishill V. Reed (1856) 18 (CB) 696 at 714
It is evident that this is a case of continuance of damage, this is because the action of the respondents/defendants from re-opening the institution since February 2018 for academic activities is a continuing act which has caused injury to the applicants/claimants, as it is the contention of applicants/claimants that the students who were eligible for the National Youth Service Corps had their hopes dashed and that they would have been part of the batches rounding up their services by the 1st half of 2018 but the action of the defendant have prevented the student from being enlisted for the scheme till date. Counsel continued that the additional consequence of the closure of the 4th defendant is that the students are unable to complete their studies for the purpose of acquiring their certificate that would qualify them for employment and also that the staff have not equally received any salaries as a result of the closure of the institution and their means of livelihood is been tampered with. I find that the closure of the 4th defendant is indeed a continuance of damage or injury caused on the claimants/applicants which is an exception to the limitation law rule. This is because the claimants are everyday expectant that the 3rd defendant will open the 4th defendant.
Next, to the crux of this application, it is settled law that an application of this nature requires the exercise of the Court’s discretion which must be judicially and judiciously exercised taking into consideration all the facts and circumstances of the case and the very hallmark of the proper exercise of judicial discretion is that it should be exercised in accordance with relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humor or sentiment. See the decided cases of Ojonye V. Onu &Ors [2018] LPELR-44212 (CA), National Pension Commission V. F.G.D Ltd [2014] 2 NWLR (Pt. 1391) 346 CA, Odulaja V. Wema Bank Ltd [2015] 9 NWLR (Pt. 1464) Pg 299. It is an undoubted fact that the claimants/applicants’ application before this Court is interlocutory in nature and the law is trite that an interlocutory order is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in an action. It merely determines some preliminary or subordinate issues and settles some step or question but does not adjudicate the ultimate right of the parties. See the locus classicus case of Toun Adeyemi v. Theophilus Awobokub [1968] 2 ALL NLR 318, also Tunji Gomez &Anor V. Cheribum and Seraphim Society &Ors [2009] LPELR-SC67/2005.
A cursory look at the reliefs sought by the claimants/applicants on the face of the motion paper and that of the main suit, shows that the nature of the reliefs sought by the claimants/applicants is impari material with that in the substantive case before this Court as reproduced supra.
A juxtaposition of the reliefs sought in both this application and the main suit clearly indicates that both are similar in facts and in content, what is then the proprietary or otherwise of the determination of an interlocutory application bothering on the substantive suit itself? Our case law is replete with cases on this issue, which is that in the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the substance claims filed and still pending before the Court. To do otherwise is to prejudge the matter in respect of which evidence is yet to be filed. See the cases Adeleke V. Lawal [2014] 3 NWLR Pt. 1391 pg. 9, Agbaje V. Ibru Sea Foods Ltd [1972] 5 SC. 50, Globe Fishing Industries Ld V. Coker [1990] 7 NWLR (Pt. 162) 265; The apex court of the land has cautioned severally and this is firmly settled, that a court, while dealing with preliminary or interlocutory matters, is not entitled to make any comment, pronouncement or observation in its ruling on that application, which might appear to pre-judge or pre-empt the main issue in the proceedings relative to the interlocutory application or which would prejudice the fair hearing of the substantive suit. See also Nwankwo V. Yar’adua [2012] 12 NWLR (Part 1209) 518, INEC V. Oshiomole [2009]4 NWLR (part 1132) 607. It is against this backdrop that I agree with the submission of the learned defence counsel and I find that to make any pronouncement on the reliefs sought at this stage will lead to deciding the substantive case in limine and the law forbids Courts in this clime to do so. I so hold.
An indepth examination of reliefs 2,4 and 5 sought on the face of the motion paper clearly shows that claimants/applicants is seeking interlocutory injunctions against the defendants. The remedy of injunction is obviously of pivotal importance in the adjudicatory process; it is however predicated on a good case being made within the template of the applicable principles to enable the Court properly exercise its discretion one way or the other. Thus, the basis for the grant of an injunction is the need to preserve the circumstances that are found to exist at the time of the application until the rights of the parties are finally determined. The need is weighed against the corresponding need of the respondents to be protected against any injury resulting from having been prevented from exercising their legal right for which they could have been adequately compensated in damages if the end of the substantive case is in their favour, See the case of Oduntan V. General Oil Ltd [1995] 4 NWLR (Pt.397) 1 at pg,12 H-13 A
From the foregoing, it is a settled principle of law that an applicant seeking interlocutory injunction must first establish that there is a serious question to be tried at the hearing of the substantive suit. It is the Claimants/applicants’ grouse that the closure of the school has caused the students and staff of the institution valuable calendar year and the students are unable to complete their studies and also staff have not been able to receive their salaries and entitlement following the closure. The defendants/respondents on the other hand contended that the Court cannot exercise its discretion on an act (i.e the closure of the school) already completed and same executed on the 8th of August 2017 and that the claimants/applicants must furnish this Court with their legal right capable of being protected in this suit and the balance of convenience thereof. I must categorically state that there is no way the Court would resolve the issue of the closure of the 4th defendant/respondent and the probable legal rights of the claimants/applicants without delving into the resolution of the substantive action at this interlocutory stage and a Court of law with an application for grant of an injunction pending the substantive suit has a duty to ensure that it does not determine the substantive case during an interlocutory application, See the case of Akapo V. Hakeem habeeb [1992] 6 NWLR(Pt. 247) Pg 266 at 287. As such, I find that an attempt to resolve the issue of closure of the 4th defendant and its attendant effect on both the employees and the students at this stage of the proceeding will amount to delving into the substantive suit in limine and that I refrain from. I however, have no hesitation in making a finding that this suit is not statute barred in view of the exception rule of continuance of damage or injury. I therefore, hold that this Court cannot delve into the substantive suit at this stage, consequent upon which I order that parties maintain status quo and for the accelerated hearing of the substantive suit.
Hon. Justice Oyebiola .O. Oyewumi
Presiding Judge
