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REPRESENTATION: WALE BALOGUN for the claimant applicant M.O. ABONNEMANN for the defendants R U L I N G The Claimant commenced this action via an Originating Summons filed on the 15th March 2015 and on the 9th May 2015, the claimants sought an order of this court to amend their originating summons and filed a Complaint filed on 9th May, 2016 with the accompanying frontloaded documents against the defendants for the following reliefs: i. A DECLARATION that the dismissal of the Claimant by the Defendant through its letter of 16th December, 2015 is a violation of the Defendant’s Reviewed Human Resources Policy and Procedure Manual (HRPPM Version No. 4) and it is therefore unlawful and, as such, null and void; ii. A DECLARATION that the dismissal of the Claimant by the Defendant through its letter of 16th December, 2015 is a violation of the Defendant’s right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and the Defendant’s “Reviewed Human Resources Policy and Procedure Manual (HRPPM Version No. 4)†and it is therefore unlawful and, as such, invalid, null, void and of no effect whatsoever; iii. AN ORDER of this Honourable Court setting aside the decision of the Defendant as contained in the letter of 16th December 2015; iv. AN ORDER mandating the Defendant to immediately re-instate the Claimant to her Office and Position in its employment; v. AN ORDER mandating the Defendant to pay the Claimant all salaries and entitlements due to the Claimant from the date of her wrongful dismissal (i6th day of December, 2016) to the day of her re-instatement, and interest thereon at the rate of 10% per annum; vi. AN ORDER awarding N50, 000,000 (Fifty Million Naira) as general Damages for the humiliation and the embarrassment suffered by the Claimant as a result of the unjust termination of her employment. The Defendant filed a 7 paragraph COUNTER AFFIDAVIT on 14th September, 2016 and deposed to by Nnennaya Okpara. With a WRITTEN ADDRESS IN SUPPORT OF DEFENDANT/RESPONDENT’S COUNTER AFFIDAVIT wherein they formulated the ISSUE Whether or not the Claimant/Applicant’s Motion on Notice for amendment filed on 9th May 2016 constitute an abuse of court process. Learned Counsel M. O. Abonneman Esq. submitted that the Claimant in the instant case is not only seeking for a leave of court to amend its originating process but is seeking to replace its Originating Summons with a Complaint and as such, constituting a gross abuse of the process of this Honourable Court. Furthermore, that the provisions of Order 5 Rules 1 and 3 of the Rules of this court do not apply as the court of law can never treat an abuse of its process as a mere irregularity, more so, no court of law will direct a departure from its rules where the interest of justice is been glaringly jeopardized as it is in this case. He contended that the facts of the cases ofAtago V. Nwuche (2013) 3 NWLR (Pt.1341) 337 and Olley V. Tunji (2013) 10 NWLR (Pt. 1362) 275as supplied by the Claimant are not applicable to this case. It is counsel’s submission that when a suit constitutes an abuse of court process, the proper order for the court to make is that of striking out the suit. We refer the Honourable Court to the case of Chief Victor Umeh & Anor V. Professor Maurice Iwu & Ors (2008) 2- 35C. (Pt. 1.) 135. Defence Counsel submitted that assuming that the Honourable Court wishes to hold that the Claimant’s application does constitute an abuse of court process, submitted that the proposed amendment by the Claimant cannot be granted, as the grant of same will greatly prejudice the interest of the Respondent who has already filed its Counter Affidavit and Written Address to the Originating Summons. Compagnie General De Geophysique (Nigeria) Limited V. Jumbo Idorenyin (2015) 13 NWLR Pt. 1475 Pg. 149 at 151. The claimant filed a FURTHER WRITTEN ADDRESS IN SUPPORT OF THE APPLICANT’S MOTION ON NOTICE To Claimant’s, Counsel assuming without conceding that the Respondent’s objection was heard, noted that the Court is empowered by virtue of its inherent powers to do justice, to ask parties to file pleadings in order for the matter not only to be heard on the merit but also for the sake of justice. TUBONEMI & ORS. V. DIKIBO & ORS. (2005) LPELR-7519.He submitted that constitutes abuse of court process is no longer recondite having been severally determined by our Court. ALI V. ALBISHIR (2008) 3 NWLR (PT. 1073) 94@141. It is counsel’s submission that the Respondent has failed to show what constitute “abuse of court process†in the Application of the Applicant, this is because there is nothing in the Applicant’s application which is not in accordance with sound legal dictates. CHIEF VICTOR UMEH & ANOR V. PROF. MAURICE IWU & ORS (2008) 2-3 SC (PT.1)135.Claimant Counsel further submitted that there is therefore no evidence or likelihood of prejudice in the grant of the Applicant’s application. COMPAGNIE GENERAL DE GEOPHYSIQUE (NIGERIA) LTD V. JUMBO IDORENYIN (20150 13 NWLR (PT.1475)149@151.Furthermore, that no new issue has been introduced, the substance remains the same, no mala-fide has been shown and what the Applicant is simply doing is to seek the leave of the Court to change the procedure for commencement of the suit, in that, instead of Originating Summon, it seeks to file pleadings.COMPAGNIE GENERAL DE GEOPHYSIQUE (NIGERIA) LTD (supra), at page 151. Claimant’s Counsel also submitted that whenever there are two competing applications where one seeks to terminate and the other seeks to save, the court is enjoined to take the latter. N.D.D.C V. PRECISION ASSCOAITES LTD (2007) ALL FWLR (PT.385)553@57o Paras C-E. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendant’s application. In the instant case the claimant are seeking leave to amend their Originating summons by filing a complaint, and it is this filing of a complaint that the defendants are opposed to not only because the claimant failed to secure leave but also because the defendants submit the process would over reach them. Now the claimants in arguing their position raised during adumbration contention that their processes were saved by the new rules. See the new rules ;Order 17 (2) which provides that “Where in the opinion of the Court a suit commenced by Originating Summons raises substantial issues and disputes of facts, the court shall not strike out the matter, but may order its conversion to a complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the court governing trials.†As for the applicability of this rule to the argument under consideration the dictum of His Lordship in the Supreme Court case of Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496, following the earlier decision in Osakue v. Federal College of Education, Asaba [2010] NWLR (Pt. 1201) 1 SC. In that case, the Supreme Court per His Lordship Rhodes-Vivour, JSC in his lead judgment made the distinction as between the law for determining a cause of action and the law for determining jurisdiction. As relates to the determination of a cause of action, that the law is the law in existence at the time the cause of action arose. But as to determining jurisdiction, the law is that in existence as at the time trial commenced. In the exact words of His Lordship Rhodes-Vivour, JSC – The law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on the 17/11/93. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990). If trial commences before 1993, the court to try the case would be the State High Court but if after 17/11/93 the case would be tried in the Federal High Court. Which by implication means that the court in considering the defendants application shall consider same with the rules currently in place. Even under the old dispensation the situation wasn’t all that different Now as regards the Originating process I am aware of the Court of Appeal pronouncement in MR. SAMUEL KOLAWOLE FAJIMI v. LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY (LASTMA) & ORS (2014) LPELR-22253(CA)that "when the originating process is an originating summons, the affidavit filed in support serve as the statement of claim, while the counter affidavit serve as statement of defence. The affidavits are the pleadings for the case." Per IKYEGH, J.C.A. (P. 39, paras. B-E) And the pronouncement of the Court of appeal in S.C.S. Company V Council of Ile Ife [2011]14NWLR (Pt.1269)193 at 204-205 paras. H-B Per Iyizoba J.C.A. “…..it is indeed not advisable to employ the originating summon for hostile proceedings. The fact that the appellant’s contract was terminated by the respondent immediately underscores the point that proceedings will be hostile. The respondent is bound to try and justify his action in terminating the contract. Whether it would succeed or not is another matter but the point is that they would try. They would fight the case all the way throughâ€. Also most apposite at this time. Also Doctor Akinola E. Omojola &Anor. V Chief Michael Dada Oyateru & Ors. [2007]LPELP 8359 CA, Egbarin Aghoghbia [2003] 16NWLR Pt. 846 p380, NEPA V Ugbaja [1998]5NWLR Pt. 548 p106 and Olumide V Ajayi [1997] 8 NWLR Pt. 517 p433. All on the premise that resort should not be made to the use of Originating Summons where there are bound to be contested facts. OLLEY V. TUNJI (2013) 10 NWLR (PT. 1362) 275 @ 281, it was HELD: “that an Originating summons is an originating process in the High court to determine an issue of law or the interpretation of documents by means of submitting affidavit as evidence. It is the appropriate procedure where the main point at issue is one of construction of a document or statute or is one of pure law. Originating summons is not appropriate where there is likely to be any substantial dispute of facts that the justice of the case would demand the settling of pleadingsâ€. This court, the National industrial Court, in a plethora of cases has held that cases of termination of employment whether by dismissal or compulsory retirement are not suited for the originating summons mode of commencement. See the cases of ABDULRASHEED MAINA Vs. HEAD OF SERVICE OF THE FEDERATION (unreported) NICN/ABJ/68/203 delivered 12th June 2013, MR. AMOS TAIWO OKUNADE &3 ORS Vs. EXECUTIVE GOVERNOR OF OYO STATE. (unreported) NICN/IB/61/2013 delivered November 6, 2013, DR. AMOS OYETUNDE ALABI &3 ORS Vs. EXECUTIVE GOVERNOR OF OYO STATE (unreported) NICN/IB/59/2013 delivered November 6, 2013 MR. OLAWORE ADEWOLE OLUSEGUN & 3ORS Vs. EXECUTIVE GOVERNOR OF OYO STATE (unreported) NICN/IB/60/2013 delivered on NOVEMBER 6, 2013 Furthermore in NIGERIAN TELECOMMUNICATION LIMITED V SIMON UGBE [2003] FWLR (Pt. 148) p1309 at 1324 para F-G wherein the Court of appeal had this to say;- “Before I end my judgment my Lords, I would like to start here without mincing words, that a serious matter such as this matter, which has to do, out of necessity with unlawful dismissal should not be originated with an originating summons which require the matter to be proved by affidavit evidence. It should have been initiated by ordinary summons so that pleadings could be ordered and exchanged and concrete evidence given to establish the status of the appellant, the nature of the relationship between parties and neither were the rules and regulated which form the basis of the contract between the parties exhibited. This is definitely not the best way to handle a serious case of this magnitudeâ€. Muktar Coomasie JCA. All underscore the preference for a writ of summons or a complaint in cases involving employment and termination. The proviso to Order 3 rule 5A stipulates that any suit that raises a substantial dispute of fact or where substantial dispute is likely to be involved shall not be commenced by originating summons but by complaint as provided for by rule 4 of this order. It is necessary to bear in mind that as in ATAGO V. NWUCHE (2013) 3 NWLR (PT. 1341) 337it was held that “The form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action was begun by writ of summons or by Originating summons. What is most important is the question of justice of the case. Thus, where a suit is improperly commenced by originating summons, the defect relates to procedure and does not affect the competence of the suit. The legal effect is to order pleadings and not strike out the suit. The Supreme Court also in OSANBADE V OYEWUMI [2007] 18 ALL FWLR (PT. 368) 1004 AT 1015 PARA –E, held that “The proper order a trial court should make where it finds that an action had been wrongly commenced by Originating Summons is to order pleadings and not to dismiss such action or pronounce on the merits of the case. All the above go to show that there transition of the origination summons to a complaint is know and supported by case law as well as procedure. The defendants have argued that the amendment is allowed would over reach then, I agree with the claimants that the defendants have not show the court how they would be overreached particularly as regards the Frontloading element concept of this court. Especially seeing as it was held in BUHARI & ORS v. HADDY SMART NIGERIA LTD & ANOR(2009) LPELR-8362(CA)that “the rationale of frontloading of witness statements and documents pleaded by a plaintiff, or which the plaintiff relies upon in the proof of his case, is designed to expedite trial by giving the defendant the overview of the case he has to contend with and to provoke an informed decision as to whether it is prudent to contest the case. Conversely, the same applies to the plaintiff, as the plaintiff having had the benefit of the overview of the defendant's case, from the witness statements" and documents exhibited by the defendant, would be able to make an informed decision as to whether or not the case he has instituted is worth pursuing."Per LOKULO-SODIPE, J.C.A.(Pp. 32-33, paras. F-B) This itself, I find, without more, underscored the defendants claim to overreaching The application of the claimant is granted, The defendants are hereby granted 14 days to make any consequential amendment, This is the court’s ruling I make no order as to costs This ruling is hereby entered accordingly. ............................................ Hon. Justice E. N. Agbakoba Judge