Peter Okafor And Anor V Association Of Senior Civil Servants Of Nigeria (2008) LLJR-SC

Peter Okafor And Anor V Association Of Senior Civil Servants Of Nigeria (2008)

LAWGLOBAL HUB Lead Judgment Report

JUDGMENT

The applicants by way of a motion on notice brought under Order 11 Rule 1(1) of the National Industrial Court (N IC) Rules 2007, section 9(2) of the N IC Act 2006, section 36 01 the 1999 Constitution and under the inherent powers of the court is praying the court for 1. An order of injunction restraining Anthony C. Ugozor from continuing to act as Anambra State Chairman of the Nigeria Union of Teachers (NUT) pending the hearing and determination of the appeal filed in this suit. 2. An order of injunction restraining the 5th to 45th respondents from continuing to act as PAGE| 3 elected representatives of the NUT in their respective local governments pending the hearing and determination of the appeal filed in this suit. 3. For such further order or other orders as this court may deem fit to make in the circumstances of this suit. In support of the motion is a 1 3-paragraphed affidavit deposed to by Comrade A. C. Azike, with two exhibits attached. The respondents did not file any counter-affidavit. Thereafter, the parties agreed to rile written addresses, which they did. In arguing its motion, the applicants first submitted that there is no counter-affidavit and so all the paragraphs or the supporting affidavit should be deemed to be true, Agbaje v. Ibru Sea Foods Ltd [1972] 5 SC 50 at 55. The applicants then went on to refer the court to paragraphs 4 to 12 of the supporting affidavit, which are germane to their application but only reproduced paragraphs 4 to 10 in their address. The reproduced paragraphs 4 to 10 provide as follows- 4. That we are aggrieved by the decision of this court delivered on 11th March, 2008 (a copy of the decision of the court is hereto annexed and marked Exhibit 1). 5. That we have since appealed against the decision (a copy of our Notice of Appeal is annexed and marked Exhibit 2). 6. That our Notice of Appeal discloses a breach of our fundamental right to fair hearing. 7. That my counsel Chief lkenna Egbuna told me and I verily believe him that our Notice and Grounds of Appeal disclose an arguable appeal. 8. Thatmycounse IChief IkennaEgbuna toldmeand Iverllybeiievehim that this appeal is in exercise o form constitutional right of appeal. 9. That Chief Ikenna Egbuna told me and I verily believe him that our Notice and Grounds of Appeal deal with the issue of jurisdiction. 10. That our Notice and Grounds of Appeal deal with a final decision of this court. The applicants also referred the court to sections 1(3) and 14 of the NIC Act 2006, which provide as follows -1(3) The Court shall… (a) Be a superior court of record, and (b) Except as may be otherwise provided by any enactment or law have all the powers of a High court. 14. The court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto PAGE| 4 may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided. The applicants continued that a look at section 16 of the NIC Act shows that this court has the power to grant injunction as it may think just. To the applicants, the question that will arise at this stage is this: having declined to entertain this suit on the ground 01′ lack of jurisdiction can this court grant this application? The applicants answered in Ole affirmative and then submitted that the reliefs presented to the court for adjudication have not been adjudicated upon one way or the other. Submitting, further, the applicants pointed out that, as conceded by the respondents by their refusal to file a counter affidavit, the Notice or Appeal of the applicants, discloses an arguable appeal. That as shown in the particulars to the Notice of Appeal Exhibits 2, this court did not consider their previous decision in Dr. Oluwarotimi Ojo and 12 ors v. Otumba O. Odujobi and 17 ors reported in Digest of National Industrial Court cases [1978 2006 DJNIC at page 188. That the decision in the case was based on selection IA(2) of Decree No. 47 of 1992 otherwise called the Trade Disputes (Amending) Decree No. 47 of 1992, which section provides as follows. Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979, any interim or interlocutory order, judgment or decision made by any court other than the National Industrial Court established under this Act, in respect of any trade dispute, inter or intra union dispute prior to the commencement of this section shall cease to have effect. That although this court does not sit on appeal over its decision, the only point the applicants are laboring to make is that the appeal is arguable; that being so the appeal has a chance of succeeding. That assuming the appeal succeeds, this court will be in a position to assume jurisdiction and then determine the issues involved in the suit. The applicants went on to submit that all courts of record whether find or appellate possess the inherent power to preserve the subject matter of litigation pending appeal, referring to the cases of City Express Bank Ltd. V. Lagos State Government and 6 ors [2004] 7 NWLR (Pt. 872) 258 at 28311 and Alhaji Saka Opobiyi and 6 ors v. Layiwola Muniru [2005] 15 NWLR (Pt. 948) 320 at 332 E – F. To the applicants, it should be noted that when this court declined jurisdiction to entertain this suit, it goes without saying that there is nothing to stay, which is why Order 30 Rule 1 of the PAGE| 5 Rules of this court is inapplicable. That what is appropriate in a situation as this one is an injunction pending appeal. The applicants then submitted that stay of execution is the suspension or postponement or halting of the effect of judgment. Similarly, that an order of injunction against a successful party pending appeal is a suspension or postponement or halting of the successful party from reaping the fruit of the judgment pending the determination of the appeal. That the grant or refusal of both reliefs are, therefore, governed by the same principles of laws, referring to the City Express Bank case, supra, at 283 B – E. Finally, the applicants submitted that whenever the issue of jurisdiction is genuinely raised in an application to this nature, it is regarded as an exceptional circumstance, which always makes the court to grant the application. That in the instant case, one of the grounds of objection of the respondents in the notice of preliminary objection, which is jurisdiction, succeeded. That in the last page of its ruling as per Exhibit 1 starting from line 2, this court held as follows-We agree that under section 7 of the NIC Act this court now has the jurisdiction to interpret union constitutions. But the present case does not deal with the question of interpretation. It deals with the question of application of the NUT constitution. In any event, we have also consistently cautioned that the interpretation jurisdiction or this court should not be used to side-track the processes of Part 1 of the TDA. Because the dispute at hand is an intra-union dispute, it is caught lip by section 7(3) of the NIC Act. This means that the dispute ought to have gone through the mediation, conciliation and arbitration processes of Part 1 of the TDA before coining to this court. In other words, the jurisdiction of this court regarding the dispute at hand is appellate, not original. The present action or the applicants before this court is, there/ore, premature. The case is, consequently, struck out. The applicants concluded that nobody can fault the issue or jurisdiction or this court raised in the Notice or Appeal and then prayed the court to preserve the res so that if the applicants will the appeal, they will have something to fall back on. In reacting to the applicant written address, the respondents contended that, going through the applicants motion and the arguments in support, the only issue for determination is whether this court can grant any injunction in this case having held that it has no jurisdiction to determine same. To the respondents, the contention of the applicants, that this court can make an order of injunction ill this case notwithstanding the fact that the court has declared that it has no jurisdiction to entertain this case, is misconceived in law. That the cases of City Express PAGE| 6 Bank Ltd v. Lagos State Government and Alhaji Saka Opobiyi v. Layiwola Muniru relied upon by the applicants are inapplicable to this-application and urged the court to disregard them. The respondents referred to the ruling of this court in this case delivered on 11th March 2008, wherein this court struck out the case for lack of jurisdiction, a fact which the applicants acknowledged in their argument, and then submitted that if a court has no jurisdiction to entertain a matter it cannot grant any injunction therein. That when a court holds that it has no jurisdiction to determine a case, there is nothing in the decision calling or enforcement by any of the parties. So, there is nothing to be executed or to he stayed. That the same principle applies for stay and injunction to an unsuccessful plaintiff. That to do otherwise would amount to approbating and reprobating, a foible that is out or character with judicial decision-making, referring the court to Oyelami v. Military Administrator of Osun State [1999] 8 NWLR (Pt. 613) 45 at 58 — 59 E — ll. That the Supreme Court clearly stated the position or the Law in a situation like this in the case or Government of Gongola State v. Tukur [1989] 4 NWLR (Pt. 117) 592 at 603, where it held as follows It should be borne in mind that at the stage when a court declares that it has no jurisdiction or has jurisdiction in a matter it has not entered into the determination of the rights or the parties. If it has heard evidence beside the evidence on the issue or jurisdiction, it has not assessed and evaluated the evidence to enable it determine the rights of the parties and or grant or refuse the reliefs claimed. It is saying at that stage it is incompetent to entertain, hear and determine the case or that it is competent to hear and determine the case. If it declares that it has no jurisdiction and is incompetent to hear and determine the case that is complete decision in itself. It means that the court cannot proceed to hear evidence and determine the rights of the parties in the case. There is nothing in the decision calling for enforcement by any or the parties. So there is nothing to he executed and there is nothing to he stayed. The respondents then submitted that since this court has rightly declared that it has no jurisdiction to determine this case, the issues or claims of the applicants in this case are not yet justifiable before this court; and so the court cannot make any orders in the matter. The respondents then referred the court to Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156 at 190, where the Supreme Court held that It is elementary that if the Court of Appeal has no jurisdiction to adjudicate on an appeal, the issue is not yet being justiciable a fortiori it cannot grant an application for stay of further PAGE| 7 proceedings in the lower court. To the respondents then, it is trite that a court must have jurisdiction before it can exercise judicial power in the case, referring to Kalil v. Odili [1992] 5 NWLR (Pt. 240) 130 at 164G. The respondents concluded by submitting that this application is misconceived and without any precedent in support. That since this court has declared that it has no jurisdiction to entertain the case, a fortiori it has no jurisdiction to make any order(s) therein. The respondents then prayed the court to dismiss the application with cost. The applicants did not react on points of law. The applicants are praying this court to restrain the respondents from acting in their respective union offices in a matter this court has held that it has no original jurisdiction to entertain. We do not think we have the power to grant the prayers of the applicants. Not only did we decline original jurisdiction on the matter, an appeal against our decision has been lodged at the Court of Appeal. To grant the prayers of the applicants in a matter that is already before the Court of Appeal is to say the least uncalled for. We agree with the submissions of the respondents that this court has no power to grant the prayers of the respondents. The authorities cited by the respondents are pretty clear on that. It is our view, therefore, that the application of the applicants lacks merit and is hereby dismissed. We make no order as to cost. Ruling is entered accordingly.

Other Citations: NIC/6/2007