Court discharges interim order, strikes out suit against NIPC

On May 13, 2020, the Federal High Court sitting in Abuja Judicial Division struck out the Suit filed by Hon. Ali Sani, a member of the Governing Council of Nigerian Investment Promotion Commission (NIPC) on the grounds that the Plaintiff lacked locus/ legal right to bring the Suit and that the Suit was statute barred.

Hon. Sani instituted the action on November 25, 2019 seeking to restrain NIPC, the Chairman of NIPC and the Executive Secretary of NIPC from appropriating and spending funds realised as internally generated revenue (IGR).

He also filed an ex parte application and interlocutory application for an injunction to restrain the Commission from further spending its IGR for 2018, 2019 and 2020.

On December 17, 2019, Honourable Justice A. I. Chikere of the Federal High Court had granted an interim order restraining NIPC from appropriating and spending its IGR pending the hearing and determination of the motion on notice for injunction.

The grant of the interim Order brought a substantial part of NIPC’s operations to a halt and made it impossible for NIPC to meet financial obligations to third parties, since it funds most of its operational expenses from IGR.

In particular, NIPC was disconnected for non-payment of electricity bills and was unable to pay for diesel to power generators. The Commission was also unable to pay the salaries of outsourced service providers (security guards, cleaners, gardeners and others) from December 2019.

Counsel to the Defendants, Messrs Afe Babalola & Co, through the lead counsel Kehinde Ogunwumiju, SAN filed a preliminary objection to the Suit and a counter-affidavit against the motion for interlocutory injunction arguing that the Plaintiff had no legal right to file the Suit as he was part of the Governing Council which approved the expenditure of the IGR.

The Defendants Counsel also argued that the Plaintiff cannot ask the Court to restrain NIPC from exercising its statutory powers to spend funds duly approved for spending in accordance with extant laws. The Counsel asked the Court to strike out the Suit on the ground that it was statute barred and that the Plaintiff lacks the locus to file the suit.

In its ruling on the motion for injunction, the Federal High Court held that the Plaintiff had no legal right to file the Suit as the Court cannot grant a relief to restrain an executive body from exercising its statutory powers. The Court held further that in any case, the application was seeking to restrain the spending of an IGR that had already been duly spent in 2018 and 2019.

Whilst ruling on the preliminary objection filed by the Defendants, the Court struck out the name of the Chairman of NIPC, which is non-existent on the ground that the said name is a non-juristic person in law.

The Court then struck out the substantive Suit on the ground that it was statute barred having been filed more than a year after the accrual of the cause of action in line with the provisions of Section 2 (a) of the Public Officers Protection Act and as such, the Court lacked jurisdiction to entertain the Suit.

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