MRS. R. U. ELUKPO VS FEDERAL MINISTRY OF HEALTH ABUJA & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 21^st day of March, 2018 SUIT N0: NICN/ABJ/01/2017

BETWEEN:

MRS. R. U. ELUKPO ………………………………………………………………………………Applicant

And

FEDERAL MINISTRY OF HEALTH ABUJA
FEDERAL MEDICAL CENTRE LOKOJA
DR. DADA GBADEBO ELESHIN…………………………………………………..Respondents

Representation:

Dr. Chief J.A.N. Elukpo for the Applicant

C.P. Ocheja for 2^nd and 3^rd Respondents.

Judgment.

This suit was originally instituted at the Federal High Court, Lokoja Division on the 6^th day of November, 2015. The case was later transferred to this court on the 29^th day of November, 2016. The matter was initially in the Abuja division of this court before being re-assigned to this division on the 21^st of November, 2017.

It is also noteworthy of mention that this matter was originally commenced by two Applicants. However, while the matter was before Hon. Justice E.N. Agbakoba of the Abuja Division, a ruling was delivered on the matter striking out J.A.N Elukpo as 1^st Applicant leaving the present Applicant.

Upon an order that the parties regularize their processes to bring them in compliance with the rules of this court, the Applicant filed an application for judicial review before this court on the 15^th of June, 2017. The Application is brought pursuant to Order 3 Rules 1 (d) and 4 and Order 48 Rules 3 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the Inherent Jurisdiction of this Honourable Court and prays the court for the following:

AN ORDER of an injunction restraining the 1^st Respondent from allowing the 3^rd Respondent to work in the 2^nd Respondent after 9/11/2015.
AND FOR SUCH further Order or other Orders as the Honourable Court may deem fit to make in the circumstances.

The application is supported by a 5 paragraph affidavit deposed to by one Sumaila Mamudu, 11 exhibits and a written address.

In opposition to the application, the 2^nd and 3^rd Respondent on the 22^nd of June, 2016 filed a 6 paragraphs counter affidavit deposed to by one Emmanuel Akindele Mejabi and a written address.

The 1^st Respondent did not enter appearance nor file any process.

Arising from the written address in support of the application, the Applicant raised a sole issue for determination by this court to wit:

whether a character of the 3^rd Respondent is qualified to work in a medical institution where lives are involved and where people of integrity are expected to work

In arguing the lone issue, Learned Counsel to the Applicant, J.A.N. Elukpo referred to the facts deposed in the affidavit in support of the application and further re-stated that:

(a) There were better qualified people during interview before the 3^rd Respondent (an Orthopedic Doctor) was appointed.

(b) Out of seven (7) Doctors convicted by the Medical and Dental Practitioners Tribunal in the whole country in 2014, four were from Federal medical Centre, Lokoja. (Exhibits ‘H’)

(c) In the Graphic newspaper of Wednesday September 10 — Tuesday September 16, 2014, he claimed to have dismissed some Doctors. A power which he has none and an affront to rule of law. (Exhibit ‘B’)

(d) The 1^st Applicant applied through Freedom of Information for some documents and information to expose where massive fraud as committed in the hospital and has failed to supply them to date despite the Order of Federal High Court Lokoja. (Exhibit ‘J’) and the 3rd Respondent is now facing contempt proceedings in that court.

(e) The 3^rd Respondent has criminal cases with Independent Corrupt Practices and Other Related offences Commission (ICPC) in Abuja. (Exhibit ‘k’)

(f) The 3^rd Respondent went to the office of the Head of Service of the Federation and forged a letter for his staff as a procurement officer to enable him circumvent contract awards procedures in 2nd Respondent. (Exhibit ‘E’)

(g) The 3rd Respondent used the kangaroo Board then to illegally dismiss the appointment of the 2^nd Applicant, a senior staff whose employment is with statutory flavour, without reason and without going through the due process (Exhibit ‘C’) after buying a Hilux Pick-up with Registration No. FG796S12 for the then Chairman of the Board, M. D. Abubakar from Kano State, which has just been returned due to intervention of ICPC.

(h) The 3rd Respondent is guilty of financial impropriety as he illegally uses the funds of the hospital to pay legal expenses to the lawyer of the Doctors convicted of their own professional negligence and misconduct.

(i) Petitions were written to the Kogi Elders Forum on the negligent, wanton destruction and premature termination of lives in the 2^nd Respondent.

(j) Imprests are not provided for the units and patients have to pay or buy items which are expected to be provided from imprest by the hospital, even petrol and diesel patients have to buy and even carry their generating sets along on admission, etc.

Counsel urged the court to grant the application as prayed and dismiss the appointment of the 3^rd Respondent and not to allow him work in the 2^nd Respondent after 9/11/2015.

In response to the argument, learned Counsel to the 2^nd and 3^rd Respondent through the joint written address also raised a sole issue for determination by this court to wit:

“Whether this application is one that this Honourable Court can grant”.

In arguing the lone issue, Learned Counsel to the 2^nd and 3^rd Respondent, C.P. Ocheja submitted that the affidavit in support of the application particularly paragraph 4 offends the provisions of Section 115(2) of the Evidence Act, 2011 which provides;

“An affidavit shall not contain extraneous matter by way of objection, prayer or legal argument or conclusion”.

He argued that the said paragraph 4 contains conclusions and legal arguments which only this court is empowered to make.

Counsel urged the court to strike out the paragraph 4 and where this is granted, there is nothing upon which the motion can rest and as such is liable to be dismissed. He cited the case of OSAYOMI V. GOVERNOR, EKITI STATE (2014) ALL F.W.L.R. (Pt. 751) p. 1513 at p. 1594, Para. H.

Counsel further submitted that every suit before a court must be based on raw facts and it must not be made in vacuum. He cited the case of REBOLD IND. LTD V. MAGREOLA (2015) ALL F.W.L.R (pt. 794) p. 94 at p. 104, para. E.

Learned Counsel further argued that the Applicants did not adduce any fact before this court to warrant the grant of this application. And that all the depositions contained in the affidavit in support of the application is bereft of any cogent fact that can persuade this court to grant the application.

Counsel contended that Exhibit “C” attached, (dismissal letter) reveals that it was the Board of Management of Federal Medical Centre, Lokoja (2nd Respondent) that dismissed the Applicant and not the 3rd Respondent. Also, the purported letter from the Independent Corrupt Practices and other Related Offences Commission (ICPC) as in Exhibit “D” was never made by any of the Respondents nor was it made or addressed to them. Simply put, the Applicants applied to the said Institution on their own and got the response they desired without any official complaint from the Respondents.

Furthermore, Learned Counsel contended that the argument of the Applicant that the 3^rd Respondent did not allow Kogi indigenes to be appointed as the Medical Director of the 2^nd Respondent is baseless, patently hollow, unfounded and misplaced both in law and fact. That worthy of note is the obvious fact that the 2^nd Respondent is a Federal Parastatal under the Federal Ministry of Health whose Medical Director is only appointed by the 1^st Respondent and no power of appointment is reposed in the 3^rd Respondent whatsoever. Counsel noted that the Applicant did not refer this court to the law that strictly provides that only an indigene of Kogi State can be appointed as a Medical Director.

Counsel also contended that where the 1^st Respondent is satisfied with the quality services delivered by the 3^rd Respondent and approve of him to continue his service with the 2^nd Respondent, the Applicant cannot be heard to bring this frivolous and vexatious application as they qualify as meddlesome interlopers who have no interest whatsoever to protect. He argued that the courts have frowned at these unwholesome practices and warned severally that professional litigants should be restrained from filing multiple suits in our courts.

Learned counsel cited the case of TAIWO V. ADEGBORO (2011) ALL F.W.L.R (PT. 584) P. 52 at Pp. 63-64, paras E-B, to establish the meaning of locus standi and concluded that the Applicant lack locus standi to institute this suit and same should be dismissed.

By way of adumbration on the written address, Learned counsel submitted that the exhibits in support of the application have no bearing with the application as it borders on the dismissal of the Applicant and the matter is already before another court. He further argued that it is trite law that a completed act cannot be restrained by injunction and relied on Uwaifo v Governor, Lagos State (2008) All FWLR (Pt.417) p.184 at 194 – 195.

Learned counsel also contended that the question is whether an employee can challenge the employment of another employee. Counsel added that the affidavit discloses allegations of crime which shifts the standard of proof to proof beyond reasonable doubt.

In conclusion, Counsel urged the court to dismiss this suit as the motion lacks foundation upon which it can be granted and award a cost of Five Hundred Thousand Naira only (N 500, 000.00) to the 2nd and 3rd Respondents against the Applicants

COURT’S DECISION

Having considered the affidavits and exhibits in support and in opposition of the application. And also the contentions arising from the written addresses in support and in opposition of same, the issue for determination by this Honourable court

Whether or not the Applicant is entitled to the relief sought.

In addressing this sole issue, I should start by appraising the rule under which this application is brought particularly Order 48 Rule 3 (1) which provides that:

3.—(1) An application for—

(a) an order of mandamus, prohibition or certiorari or declaration ; or

(b) an injunction restraining a person from acting in an office in which such a person is not entitled to act, (underline mine for emphasis)

shall be made by way of an application for judicial review in accordance with the provisions of this Order.

This means an application can be brought before this court to restrain a person from acting in an office in which such person is not entitled to act. The functional word that would warrant the grant of the injunction is whether or not the person to be restrained is “entitled”.

The word ‘entitle’ according to Black’s Law Dictionary (8^th Edition) p. 573 means:

“To grant a legal right to or to qualify”.

This presupposes that a person can be restrained from acting in an office in which such person has not being granted the legal right to or qualified to act in.

That being said, while the prayer of the Applicant before this court is:

AN ORDER of an injunction restraining the 1^st Respondent from allowing the 3^rd Respondent to work in the 2^nd Respondent after 9/11/2015,

The question that naturally flows from this is that has the Applicant presented sufficient facts before this court to the effect that the 3^rd Respondent who is to be disallowed is not entitled to the office to warrant the order of this court?

The answer to this question lies in the perusal of the affidavit in support of the application with due regard for the counter affidavit in opposition of same.

The Applicant supported the application with a 6 paragraph affidavit and of particular significance is paragraph 4 wherein the facts as they relate to the 3^rd Respondent were deposed. The said paragraph 4 for the sake of clarity is hereby reproduced:

That I was informed in the chambers of Elukpo, Elukpo & Co, Julius Elukpo Estate, Lokoja on 21/10/2015 by the 1^st Applicant at about 2:00pm and I verily believe him to be true as follows:

(a) That the 3^rd Respondent is the Medical Director (MD) of the 2nd Respondent.

(b) That the 1^st Applicant applied through Freedom of Information (FOl) for some documents and facts from the 3^rd Respondent and has not been able to comply to date (Exhibit ‘A’)

(c) That the 3^rd Respondent illegally dismissed his colleagues (Exhibit ‘B’) including the 2^nd Applicant (Exhibit ‘C’) and the ICPC wrote that they did not found any fault against the 2^nd Applicant. (Exhibit ‘D’)

(d) That the 3^rd Respondent forged a letter from the office of the Federal Head of Service appointing a procurement officer in the 2nd Respondent (Exhibit ‘E’) and through application for Freedom of Information (FOl) the office of the Head of Service of the Federation denied the letter (Exhibit ‘F’)

(e) That the 3^rd Respondent awarded contracts without going through the due process.

(f) That contracts awarded in the 2^nd Respondent were paid for but not executed.

(g) That the 3^rd Respondent frustrated the statutory provisions from Kogi State indigenes being appointed on the Board of the 2^nd Respondent. (Exhibit ‘G’)

(h) That the criminal activities of the 3^rd Respondent were reported to ICPC (Exhibit ‘H’)

(i) That the 3^rd Defendant illegally used the money of the hospital to pay legal fees for some individuals who were found incompetent, wanting and negligent in their professional careers in the employment of the 2^nd Respondent.

(j) That during the tenure of the 3^rd Respondent, lives were prematurely terminated through his negligence and incompetence to manage the 2nd Respondent.

(k) That the 1^st Applicant has written for the tenure of the 3^rd Respondent in the 2^nd Respondent to be probed.

I must of necessity first acknowledge the reaction of the 2^nd and 3^rd Respondent to the above deposition. The counter affidavit deposed to by Emmanuel Akindele Mejabi clearly shows that the 2^nd and 3^rd Respondents are opposed to the facts when he stated that:

That I was informed in the chambers by Dr. Dada Gbadebo Eleshin (3^rd Respondent) in the course of my duty on the 15^th day of June, 2017 at about 2:00 pm and I verily believe him as follows:
That he has read the affidavit of Sumaila Mamudu.
That paragraphs 4 (a) — (K) of the affidavit of Sumaila Maiudu is false.
That he is an employee of the Federal Ministry of Health and working with the Federal Medical Centre, Lokoja.
That he is on a permanent and pensionable employment with the Federal Ministry of Health.
That his appointment as the Medical Director of the despondent is just for a specified Period which does not affect his statutory employment in anyway whatsoever.
That he has since completed his tenure as the Medical Director and he is no longer the Medical Director.
That he is an Orthopedic Surgeon and a Consultant whose service is still required by the 2^nd Respondent and can only be determined by the 1^st Respondent.
That he discharged his duties when he was the Medical Director of the 2^nd Respondent diligently with the professionalism required of him and to the satisfaction of the 1^st Respondent.
That he never dismissed anybody personally or in his official capacity as the Medical director but any dismissal that is complained of was done by the Board of Management of the Federal Medical Centre, Lokoja.
That he and the 2^nd Respondent have never written any letter complaining of any crime against the 2^nd Applicant, neither was any investigation instigated against her that could warrant the letter attached as “Exhibit D”.
That he has never awarded any contract without following due process.
That the appointment of Medical Director of a Federal Parastatal like the 2^nd Respondent is not based on who is indigenous to the particular state it is situated but on qualification and competence.
That he has never been indicted on any corrupt practices or activities during and after his tenure as the Medical Director of the 2 Respondent.

Learned Counsel to the 2^nd and 3^rd Respondent argued that the facts deposed in the affidavit in support of the application are in contradiction of section 115 of the Evidence Act 2011 on the basis that they are conclusions.

The court in the case of COSMAS MADUKA v. DR PATRICK IFEANYI UBAH & ORS (2014) LPELR-23966(CA) provided the test for distinguishing facts and circumstances from legal arguments and conclusions in an affidavit when it held that:

“In the case of General Aviation Services Ltd. V. Thahal (2004) All FWLR (Pt. 211) 1368 @ 1390, Uwaifo JSC set out the test for distinguishing facts and circumstances from legal arguments and conclusions in an affidavit: “The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit. If it is such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove or disprove a fact in issue, then they qualify as statement of facts or circumstances. This means that affidavit evidence must as a general rule deal with facts and avoid matters of inference or conclusion which fall within the province of the court; or objection, prayer or legal argument which must be left to counsel. If therefore affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted but is simply regarded as extraneous to the determination of factual disputes.” Per IYIZOBA, J.C.A. (Pp. 32-33, paras. C-A) –

The court in the same case went further to restate the provision of section 115 of the Evidence Act when it held that:

“Section 115 of the Evidence Act 2011 provides: 1. Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. 2. An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.”

I have considered the depositions particularly paragraph 4 which states “That I was informed in the chambers of Elukpo, Elukpo & Co, Julius Elukpo Estate, Lokoja on 21/10/2015 by the 1^st Applicant at about 2:00pm and I verily believe him to be true as follows:” It is the holding of this court that the depositions are not conclusions since they are information made to the deponent who believe them to be true.

Going forward, the background facts upon which this application emerged can be summarized briefly. By the Originating summons, the Applicant sought for an Order of injunction restraining the 1^st Respondent from allowing the 3^rd Respondent from working in the 2^nd Respondent after 9/11/2015.

What then is an injunction? “An injunction is a judicial remedy of an equitable nature by which a person is ordered to refrain from doing or to do a particular act or thing. A mandatory injunction or positive injunction is an order of court requiring a party to do a specific act or action. Mandatory injunction or restorative is granted in most cases to undo what has already been done”. Per. Adzira Gana Mshella JCA in Adeleye & Ors v. The Executive Governor of Ogun State (2012) LPELR – 9584 (CA).

The guiding principles applicable in granting mandatory injunction is well settled as shown in a number of cases. In Halsbury’s Laws of England, 4^th edition, volume 24, paragraph 948, the test to be applied in the grant of the interlocutory or mandatory injunction is stated as:

“a mandatory injunction can be granted on interlocutory application as well as at the hearing but in the absence of a special circumstance, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once or if the act done is simple and summarily one which can be easily remedied or if the Defendant attempts to steal a match on the Plaintiff … a mandatory injunction will be granted”.

With a painstakingly provided details in A.G. Anambra State v Okafor (1992) 2 NWLR (Pt.224), Nnaemeka-Agu JSC stated the difference between a mandatory injunction and other interlocutory injunctions at pages 427 – 428 when he said:

“Although a mandatory injunction is sometimes classified as an interlocutory order of injuction, it is a different type of injunction with its own distinct principles. It is worthy in this respect that it is usually targeted upon a completed act and the order may be made for example to order a building which has been erected to be pulled down if it has been established that the Defendant erected it stealthily in order to steal a match on the Plaintiff … see Daniel v Ferguson (1891) 2 Ch.77.

An interlocutory injunction is on the other hand negative or restrictive in nature and so is made to preserve a breach. Also, there is difference in the quality of evidence necessary to entitle an applicant to relief in the two types of injunction… see Obeya Memorial Hospital v AGF (1987) 3 NWLR (Pt.60) 3725; Kotoye v CBN (1989) 1 NWLR (Pt. 98) 419.

But in an application for mandatory injunction, the courts have shown more reluctance to make the order. See Blakemore v. The Blarmorganshine Navigation (1832) 1 My and VR 155.

Before it is granted, the court require a higher degree of assurance that at the trial it would still appear that the order is rightly made. The court must first consider the fairness of the order.

In a further related case of Central Bank of Nigeria v UTB (Nig.) Ltd. (1996) 4 NWLR (Pt.445) 694, it was stated thus:

“Some of the circumstances in which a mandatory injunction will be granted are where the injury done to the Plaintiff cannot be estimated and sufficiently compensated for by damages or is so serious that the restoration of things to their former condition is the only method whereby justice can be adequately done or where the injury complained of is in breach of any express agreement, the court will exercise its jurisdiction and grant a mandatory injunction”. See Halsbury’s Laws of

England (Supra) para.948. and Adeleye v The Executive Governor of Ogun State (Supra).

From the above authorities, it is clear that the courts are reluctant to grant mandatory injunction unless an applicant can prove special circumstances to warrant its grant.

It is to be noted that the mandatory injunction is an equitable remedy and the grant of same is discretionary. Being discretionary, all that is required of a court is that the discretionary power should be exercised judicially and judiciously. The overriding principle that should guide the court is the interest of justice. If it is found to be in the interest of justice it should be granted. It should be refused if it does not serve the interest of justice.

An interlocutory injunction on the other hand is an injunction directed to ensure that a particular act or acts do not take place or continue to take place pending the final determination by the court of the rights of the parties.

The purpose therefore is to protect a plaintiff against injury by a violation of his right for which he could not be adequately compensated in damages recoverable in the action if the case were determined in his favour at the trial.

Notwithstanding, the right of the Plaintiff to be so protected, it has to be weighed against the corresponding need of the Defendant to be also protected against injury resulting from him having been prevented from exercising his own legal right if the uncertainty were resolved in his favour. See Obeya Memorial Hospital v AGF (supra); Ojukwu v Governor of Lagos State. (1986) 3 NWLR (Pt.26) 39.

In Kotoye v CBN & 7 Ors (supra) the Apex Court laid down the general principle guiding the grant or refusal of an application for interlocutory injunction. These guiding principles include the following:

The applicant must show that there is a serious question to be tried. i.e. the applicant has a real probability not a probability of success at the trial notwithstanding the defendant’s technical defence if any.
The applicant must show that the balance of convenience is on his side. That is, that more justice will result in granting the application than in refusing it.
The applicant must show that damages cannot be an adequate compensation for his damage or injury if he succeeds at the end of the day.
The applicant must show that his conduct is not reprehensible, for example, that he is not guilty of any delay
No order for an injunction should be made on notice unless the applicant gives a satisfactory undertaking as to damages save in recognized examples”

Although an applicant is not at this stage required to make out a prima facie case, the court has to be satisfied that the applicant’s case is not frivolous or vexatious and there is a serious issue or question to be tried. See Falomo v Bamigbe (1998) 7 NWLR (Pt.559) 679

Furthermore, interlocutory injunction is an equitable remedy which is at the discretion of the court to grant. The Applicant therefore has an unfettered duty to satisfy the court that in the special circumstances of his case, he is entitled, on the facts presented by him, to the reliefs sought. See Ayorinde v A.G. Oyo State (1996) 3 NWLR (Pt.494) 20

More poignantly, in Ochudo v Oseni (1998) 13 NWLR (580) 103 it was stated that an interlocutory injunction will be refused if it should appear unjust or highly unreasonable to grant having regard to the well-known equitable consideration such as hardship or balance of convenience or such other matters.

In Bakare & Anor v Bakare & ORS (2011) LPELR, it was held that the law is well settled that an injunction is not a remedy for a completed act. An injunction will not be granted even where the act complained of is irregular. Per Kekere Ekun (JCA) (as she then was) p.22-23.

Having painstakingly restated the general principles relating to mandatory and interlocutory, the only issue for consideration is whether or not the said application satisfies the conditions warranting the exercise of the discretion in favour of the Applicant. The determination of the said issues calls for the consideration of the material facts placed before the court.

As earlier pointed out, the grant or refusal of the application is at the discretion of the court. This discretion of course has to be exercised judicially and judiciously. The relevant paragraphs of the main affidavit in support and the counter affidavit have been reproduced previously and reference will be made to some paragraphs where necessary.

As revealed by the affidavit evidence, the main grouse of the applicant is in respect of the legal right of the 3^rd Respondent to be entitled to the office of Medical Director with the 2^nd Respondent Institution.

The 2^nd and 3^rd Respondents on the other hand are opposed to these facts as stated in their counter affidavit. Paragraph 3 states that 3^rd Respondent is an employee of the Federal Ministry of Health (1^st Respondent) and working with the Federal Medical Centre, Lokoja (2^nd Respondent); that his appointment as the Medical Director of the 2^nd Respondent was just for a specified Period which does not affect his statutory employment in anyway whatsoever; that he has since completed his tenure as the Medical Director and he is no longer the Medical Director in the 2^nd Respondent.

What is clear and apparent from the affidavit is that the 3^rd Respondent is no more the Medical Director of the 2^nd Respondent having completed his tenure. What then does this injunction seeks to retrain since the 3^rd Respondent had completed his tenure.

That notwithstanding, before an injunction could be granted, Applicants are required to prove special circumstances that would warrant the granting of the order. Paragraph 4 of the affidavit in support and paragraph 3 of the counter affidavit (all reproduced above) are relevant facts that will assist the court in determining whether there is a special circumstance in the instant suit.

With regards to the appointment and tenure of the 3^rd Respondent as the Medical Director in the 2^nd Respondent, the argument of the Applicant is that there were better qualified people during the interview before the 3^rd Respondent (an Orthopaedic doctor) was appointed.

Considering this contention, the burden is on the Applicant to prove same as section 131 provides that:

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Furthermore, the court in this regard held in the case of Ajuwon v. Akanni (1993) NWLR (Pt. 316)182 that:

“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted”. PER IGUH, JSC.

While the 2^nd and 3^rd Respondent had denied this fact, there is no material evidence placed before the court to establish that the 3^rd Respondent was not qualified to occupy the office as Medical Director.

In Badejo v Fed. Min. of Education (1996) 8 NWLR (Pt.464) 15 at 41 Para. C-E the Apex court per Kutigi JSC (as he then was) observed as follows:

“Chief Ajayi ought to have realised that for a court of law to have proceeded in the way he suggested would amount to putting the entire Federal Republic of Nigeria at the mercy of one aggrieved individual. A case of total “brutalization” of the people’s fundamental right when compared with an infringement of the appellant’s fundamental right? That to me would again amount to a subversion”.

The above authority is relevant to the case at hand. This is predicated on the fact that considering paragraph 3 (e) and (f) of the counter affidavit wherein the 3^rd Respondent informed the deponent that his appointment as Medical Director of the 2^nd Respondent is for a specified period, same having been completed and he is no longer the Medical Director, this court has no basis for granting the injunction restraining the 1^st Respondent from allowing the 3^rd Respondent to work in the 2^nd Respondent after 9/11/2015.

To ask the court to reverse the appointment of the 3^rd Respondent as Medical Director having completed his tenure on the basis of the fact that there were better qualified people is to say the least, preposterous. No court should allow itself to be used as an instrument of subversion under the guise of enforcing a fundamental right. The court has to consider the competing interest of the parties; where does the balance of convenience lie?

The dilemma usually faced by the courts as regards the grant of injunctions whether mandatory or interlocutory injunction is, there is by designation a risk that the court may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice. The guidelines for the grant of both kinds of injunctions was stated in Films Rover International Ltd & Ors v Cannon Films Sales Ltd (1986) 3 All ER 772 at 780.

The above statement is apt, the overriding principles should be in the interest of justice. As earlier pointed out, injunctions are equitable remedies, the grant of which are discretionary. Being discretionary, the court is required to exercise it judicially and judiciously. Every case has to be considered according to its given set of facts and circumstances. Having considered the materials placed before this court, it is my humble view that in exercising my discretion to grant or refuse to grant the application, I will take the course that carries the lower risk. See Films Rover International Ltd & Ors v Cannon Films Sales Ltd (supra) 780 – 781.

In other words, I refuse the prayers of the applicant for an injunction restraining the 1st Respondent from allowing the 3^rd Respondent to work in the 2^nd respondent after 9/11/2015 an I so hold.

With regards to the contention that the act for which the Applicant is complaining about is complete, it is noteworthy that the Applicant in this suit had her employment terminated as paragraph 4 (c) of the affidavit in support of the application states that the 3^rd Respondent illegally dismissed his colleagues including the Applicant. Exhibit B and C were annexed to the affidavit to that effect. While Exhibit B is a newspaper cut, Exhibit D is a letter dated 17^th April 2014, addressed to the Applicant. The letter is a letter of dismissal and the Counsel to the Applicant argues that the 3^rd Respondent had no such power to dismiss the Applicant. In response, learned Counsel to the 2^nd and 3^rd Respondents argued that a suit is presently pending before this court with respect to the dismissal.

I must say that the contention with regards to another suit pending in respect of the dismissal was not controverted and therefore need no proof. see the case of PDP v. LAWAL & ORS (2012) LPELR-7972(CA) where the court held that “The law is settled that facts not disputed, denied or controverted are deemed as admitted. See AJOMALE v. YADUAT (No.2) (2003) FWLR [pt.182] 1913 at 1925; OGAR v. JAMES (2001) 10 NWLR [pt. 722] 621 at 639.” Per EKO, J.C.A. (P. 46, paras. F-G).

That being the situation of things, this court shall not pronounce on the suit pending before another court as it would be prejudicial to do same.

I shall now proceed to consider other facts made in the depositions in support of this application particularly paragraphs 4 (a)-(k), the learned Counsel to the 2^nd and 3^rd Respondent argued that the affidavit discloses allegations of crime which shifts the standard of proof to proof beyond reasonable doubt. Upon a cursory look at the paragraphs 4 (a) –(k), sub paragraph (d) alleges that the 3^rd Respondent forged a letter; (e) alleges that the 3^rd Respondent awarded contracts without due process; (h) alleges that the criminal activities of the 3^rd Respondent were reported to the ICPC; (i) alleges that the 3^rd Respondent illegally used money of the hospital to pay for legal fees of certain individuals and (j) alleges that during the tenure of the 3^rd Respondent lives were lost through the negligence and incompetence of the 3^rd Respondent.

There is no gainsaying that the allegations in the said sub paragraphs points to the commission of crimes and this proceeding is not a criminal proceeding. The court in the case of ODON v. AMANGE & ANOR (2008) LPELR-4681(CA) held that:

“Put in simple language, a crime is an offence which is punished by law or activities that involve breaking the law or prohibited by the law. In the Black’s Law dictionary, a crime is defined as follows: – “An act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.” Per Garba, J.C.A.(P. 35, paras. A-C)

Consequently, an allegation of forgery and loss of lives due to negligence are criminal allegations for they are offences punishable by law.

Furthermore, the criminal allegations require proof beyond reasonable doubt and the burden is squarely on the party who alleges the commission of the crime. The Evidence Act 2011 by section 135 provides that:

If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action

It was held in United Bank for Africa Plc v Unisales International (Nig.) Ltd 2014 LPELR – 248283 (CA) that:

“The imputation of criminal allegations in a civil proceeding is an allegation of the commission of a criminal offence and under section 138 of the Evidence Act 2011, proof of any such allegations shall be beyond a reasonable doubt. Same as the standard required for proof of criminal allegations in a criminal court.

It is elementary rules of pleadings that fraud (like every other crime alleged in this case), being such a very serious allegation has to be specifically pleaded against an opponent otherwise no evidence can be led on such allegation and the allegation cannot be sustained by the court. See the old case of TEMAKLOE vs. BASSET TRADING CO. LTD (1940) 6 WACA 231

In Onafowokan v Idowu & Bros (1969) 1 NWLR 77, it was held that

“such an allegation must be pleaded with utmost particularity and distinctly proved”

The question that should be addressed here is, when in making its allegations against the Respondent, did the Applicant plead with utmost particularity as required and proved distinctly as required beyond reasonable doubt? As it relates to the question of proof, the affidavit in support of the originating process filed by the Applicant has been reproduced in the cause of this judgment.

It is always one thing to make allegations and exactly another to prove the allegations. No such proof has been provided in this case. No useful material has been placed before this court to prove the allegations against the 3^rd Respondent beyond reasonable doubt and I so hold.

Considering the foregoing, the sole issue is accordingly resolved in favour of the Respondents.

In the final analysis, I find the case of the Applicant lacking in merit and same is hereby dismissed.

Judgment is entered accordingly.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.