Dr. Jeremiah Abalaka V. Minister of Health & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

ODILI, J.C.A.

 In a motion on notice dated 23rd June 2005 and filed on the same date, the applicant prayed for the following reliefs:-

1. An order of interlocutory injunction restraining the respondents either by themselves, their agents, servants or privies from investigating, trying or in anyway subjecting him to any judicial or quasi-judicial proceeding pending the determination of his appeal pending before the Supreme Court.

2. Further or other orders as this honourable court may deem fit to make in the circumstances.

In moving the motion learned counsel for the appellant/applicant Mr. Ben Omale stated that the application was brought pursuant to order 8 rule 12(3) of the Supreme Court Rules 1985, order 3 rule 3 of the Court of Appeal Rules and S.16 of the Court of Appeal Act.

Learned counsel referred to the 4 paragraph supporting affidavit deposed to by one John Usman, litigation secretary of Isaac Okpanachi & Company counsel to the appellant/applicant. He also referred to exhibit A which is the notice and grounds of appeal. Mr. Omale submitted that in determining a motion for interlocutory injunction there are certain guiding principles which are:

1. That there is a serious issue to be tried;

2. That the balance of convenience is on the side of the applicant.

That damages will not be adequate compensation. He cited the cases of Kotoye v. CBN & 7 Ors (1989) All NLR 76 at 87; (1989) 1NWLR (Pt.98) 419; Obeya Memorial Specialist Hospital v. Attorney General Federation (1987) part 2 volume 18 NSCC 961 at 968 – 969.

Learned counsel went on to state that on triable issue the Notice of Appeal exhibit A has raised recondite issues of law for consideration. He referred to S.46(1) of the 1999 Constitution as interpretation of that constitution is in issue and it is a serious issue and it is triable. He referred to the grounds of appeal.

Learned counsel said the balance of convenience is in favour of the applicant. That respondents would lose nothing if the application is granted while applicant would lose everything if the application is not granted.

Mr. Omale said damages cannot adequately compensate the applicant in the event he succeeds on appeal. That by paragraph 3(h) of the supporting affidavit, the applicant has shown that as a medical doctor he stands the risk of having his name removed from the register and such a damage can never be adequately compensated in damages.

In respect of the conduct of the parties learned counsel for the applicant said the applicant has conducted himself in a manner that will warrant a grant of this application while the respondents have shown that they are in a hurry to try and convict the applicant.

Learned counsel stated further that there is no counter affidavit and it is trite law that uncontroverted deposition in an affidavit are to be deemed correct and accepted by court as the true position and so the depositions are to be deemed correct. That the court should grant the applicant the order sought so as not to render nugatory the appeal before the Supreme Court.