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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Judge Hon. Justice F. I. Kola-Olalere Judge Hon. Justice O.A. Obaseki-Osaghae Judge Hon. Justice J. T. Agbedu-Fishim Judge DATE; JULY 16, 2008 SUIT NO. NIC/42/2007 BETWEEN 1. Life Flour Mill Limited 2. Topseeds Limited…………………………..…………………...Claimants AND 1. National Union of Food, Beverage and Tobacco Employees 2. Comrade I.G Yussuff 3. Comrade Benson Osifo 4. Comrade Goodluck Iyekekpolor 5. Comrade Nwafor Ogochukwu……………………..…………Respondents REPRESENTATION: O.R. Adisa, for the claimants and with him is M.O. Ighekpe. T.S. Adewuyi, for the respondents RULING The claimants had taken up a complaint against the respondents dated and filed 25th September 2007 praying the court for the following – 1. A declaration that the purposed strike action by the respondents is premature and consequently unlawful for non-compliance with the provision of the law. 2. A declaration that the threats, harassment for non-member staff of the claimants and the destruction of the properties of the claimants is contrary to law. 3. An order that the respondents suspend or call off the strike until they comply with the provision of the law. 4. Assessment of losses occasioned to the claimants and third parties as result of the unlawful strike. Accompanying the complaint is a 15-paragraphed statement of facts and a list of documents to be relied on. Filed alongside the complaint are a motion ex parte and a motion on notice, all dated and filed 25th September 2007 with supporting affidavits. The respondents in reaction filed a counter-affidavit on 5th October 2007. The court considered the motion ex parte but declined to grant it and instead directed that the respondents be put on notice. While the motion on notice was being heard, specifically after the claimants had moved in terms of their motion papers, parties applied that they be given time to explore the possibility of settling the mater out of court. This the court granted. However, the settlement out of court failed and so the parties requested that hearing of the matter should continue. It was at this point that on 12th may 2008 the respondents filed a motion on notice seeking the leave of court to extend the time within which the respondents may file and serve their statement of defence/counter-claim and to deem the attached statement of defence/counter-claim as having been properly filed and served Accompanying the statement of defence/counter-claim is a list of witnesses to be called and a list of documents to be relied on. Unfortunately, due to an error on the part of the court, this motion on notice together with the attached statement of defence/counter-claim was not served on the claimants until the 4th day of June 2008, the day the application for discontinuance was 30th May 2008 and duly served on the respondents. In moving the motion for discontinuance, the claimants submitted that they were only served with an application to enter appearance and file a statement of defence out of time on 4th June 2008. To the claimants, with the filing of the notice of discontinuance on 30th may 2008 and service of same on counsel for the respondents, the entire suit is effectively determined by law. That this is notwithstanding the fact that the application for extension of time was filed on 12th may 2008 i.e. first in time before the motion of discontinuance. That this is because since hearing has not started in this case, the permission of this court is not necessary to discontinue the suit, referring the court to the cases of National Maritime Authority v. Brawal Shipping Nig Ltd (1999) 8 NWLR (Pt. 615) 477 at 479 and Ansa v. Crosslines Ltd (2005) 14 NWLR (pt. 946) 645 ratio 11 at 651. The claimants then prayed the court to uphold their application for discontinuance and strike out the case. The respondents in their reaction conceded that the claimants have the right to discontinue their claim. However, that where there is a counter-claim, that counter-claim survives the discontinuance. That the counter-claim is a separate action which can survive even if the claimants’ claim is aborted or dismissed, referring the court to Peterside v. IMB Nig. Ltd (1993) 2 NWLR (Pt. 278) 732 – 733. To the respondents, as of 12th May 2008, they filed their counter-claim. That they did not only file a motion to regularize their processes, but that they actually filed the counter-claim, referring to UBA v. Nwora (1978) 11 NSCC 519 at 524 and Order 19 Rule 17(1) of the National Industrial Court (NIC) Rules 2007. The respondents then prayed the court to allow the counter-claim which is already before the court to be heard on its merit. That the fact that the claimants want to discontinue their claim should not preclude them from filing their defence to the counter-claim. The claimants did not react on points of law. Both parties are agreed that the claimants have the right to discontinue their claim under order 19 Rule 17 of the NIC Rules 2007, which provides that- where before the date fixed for hearing of judgment, any party to the proceedings desires to discontinue a claim or to withdraw any part of it, such party shall give notice of discontinue or withdrawal in writing to the court and to the other party. The court shall upon the discontinuance or withdrawal make such order or orders as may seem just. The only point of dispute relates to the consequential order the court should make: whether to rule that counter-claim, which was not served on the claimants until the 4th of June 2008, subsists for all intents and purposes and for which the claimants must enter their defence in the present suit; or to rule lapsed and so can only be heard by this court upon the filing of a fresh and separate suit by the respondents against the claimants. While the claimants argued for this latter option, the respondents argued for the former. As indicated earlier, the fact of not serving the claimants the notice seeking leave of court to file the statement of defence/counter-claim of the respondents was error on the part of the court. The respondents had appropriately filed the motion and paid for service. To agree with the argument of the claimants that there was no valid counter-claim before the court at the point of arguing the motion for discontinuance, given that the claimants were only served with the processes on the day the motion for discontinuance was moved, will mean that the error of non-service of the said processes on the part of the court is being visited on the respondents. The supreme Court has held in C.C.B (Nig) Plc V. A. G. Anambra State (1992) 8 NWLR (Pt. 261) 528 at 560 – 561 ‘it will be contrary to all principles to allow litigants to suffer for the mistake of the court’s registry’. The other alternative is to accede to the argument of the respondents and deem the counter-claim as validly before the court and against which the claimants should enter their defence. The variant of this option is that acknowledged by the claimants, namely, that the respondents should simply file a fresh action. In either of these variants i.e. whether the counter-claim is deem to be valid for present purposes or the respondents file a fresh action, the claimants must respond to the claims of the respondents. Given the attributes of this court as one where flexibility, speed, equity and justice are recurring norms and the underlying principles, the question is why we should go the circuitous route of insisting that the respondents file a fresh action as argued by the claimants. The very essence of a counter-claim is that it was permitted in law so as to avoid the duplication or multiplicity of actions. As far as possible then, the counter-claim permitted all matters in controversy between the parties to be completely and finally determined. See the court of appeal decision in Ntoe Ekong Ntiero Effiom and Ors V. Chief Orok Inang Ironbar and Ors (2000) 11 NWLR (Pt. 678) 344 at 356. All of this has support in section 14 of the NIC Act 2006, which provides that – 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 no such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entiled to in respect of any legal or equitable claim properly brought forward (before) 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. At the point that the respondents filed their motion for extension of time to file their defence/counter-claim, they not only attached the said defence/counter-claim, but they appropriately paid for service. the court cannot just close its eyes to this fact and visit the error of non-service on the respondents. In consequence, we hereby allow the claimants to discontinue their claim but this is without prejudice to the respondents pursuing their counter-claim against the claimants. The claim of the claimants is hereby struck out. The repondents’ counter-claim is hereby deemed to be properly filed and served. The claimants are to enter their defence in regards to the counter-claim of the respondents against them. We make no order as to cost. Ruling is entered accordingly. Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice V.N Okobi Hon. Justice F.I. Kola Olalere Judge Judge Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu Fishim Judge Judge