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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip … Presiding Judge Hon. Justice O. A. Obaseki-Osaghae … Judge Hon. Justice J. T. Agbadu-Fishim … Judge DATE: MAY 3, 2011 SUIT NO. NIC/LA/12/2010 BETWEEN: Bank of Industry Limited … Claimant/Respondent AND National Union of Banks, Insurance and Financial Institutions Employees … Defendant/Applicant REPRESENTATION Yinka Sunmola, for the defendant/applicant. T. A. B. Oladipo, for the claimant/respondent. RULING The claimant took up a complaint, which was filed on May 7, 2010, against the defendant praying for the following reliefs – 1. A declaration that the judgment of [this court]…dated 14th February 2007 in Suit No. NIC/9/2000 between National Union of Banks, Insurance and Financial Institutions Employees v. Nigerian Industrial Development Bank Limited wherein the court held that the claimant herein was bound to implement the Federal Government circulars dated 13th September 1991 and 29th June 1992 in the manner prayed by the defendant herein is contrary to the rules of natural justice and unconstitutional, null and void. 2. An order setting aside the aforesaid judgment. 3. An injunction restraining the defendant herein, its agents, officers and/or servants from giving effect to the said judgment or otherwise acting thereon to the prejudice of the claimant. In reaction, the defendant/applicant filed a Notice of Preliminary Objection dated 29th November, 2010 and filed on the 3rd of December, 2010. The said objection seeks for an order dismissing this suit on the ground that this Court lacks the jurisdiction to entertain same. It is instructive to note that this Court had raised the same point suo motu. The said application is supported by a 12-paragraphed affidavit deposed to by one AYIKU ABDULRAHMAN ALITY, who is the Vice-Chairman of the applicant union. The facts of this case are that a trade dispute arose between the parties sometime in April 1998 and the Industrial Arbitration Panel (IAP) heard the matter and gave its award. Dissatisfied with the award of the Industrial Arbitration Panel (IAP) an objection was lodged with the Honourable Minister of Employment, Labour and Productivity who invoked his power under the Trade Dispute Act by referring the matter to this Court. At the conclusion of the case, this Court delivered its judgment in the matter on the 14th day of February, 2007. The claimant/respondent, rather than give effect to the said judgment, filed several applications at the Court of Appeal Lagos to frustrate the said judgment. In reaction to the said processes filed by the claimant/respondent at the Court of Appeal, the defendant/applicant herein filed a Notice of Preliminary Objection to same. Given the hint by the Justices of the Court of Appeal that they did not have jurisdiction to entertain the matter, the claimant/respondent was constrained to file a Notice of Withdrawal of Appeal consequent upon which the appeal was dismissed with cost. This was the situation until the 27th day of October, 2010 when an originating process in this suit was served on the applicant’s counsel. In objecting to the suit, the respondent raised the following issues for determination – 1. Whether the judgment delivered by this Court on the 14th day of February 2007 (Exhibit AA1’) was one based on the merit of the matter after affording the parties the right of being heard or was it a technical one given in the absence of either of the party. 2. Whether a Court can review its own judgment and/or sit on appeal on its own judgment. 3. Whether the institution of this suit does not amount to multiplicity of suit as it was filed. On issue 1, the respondent submitted that the judgment in issue (Exhibit AA1) was one based on the merit of the matter and not on any technicality. That in Sunday Ikeanyi v. Beastchoice Aluminum Co. Ltd [2006] 19 WRN 81, the Court of Appeal in Ratio 10 of the said decision defined fair hearing thus – Fair hearing within the meaning of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria means trial or investigation conducted according to all rules formulated to ensure that justice is done to all parties. The doctrine of fair hearing therefore envisages that both parties are given ample opportunity of presenting their respective cases without hindrance right from commencement of such case to its conclusion. To the respondent, it is apposite to state that the judgment in this matter (Exhibit AA1) cannot be described by any iota of description as one which resulted where any of the parties which appeared before the Court was refused a hearing or denied the opportunity to be heard or present his case or call evidence. On issue 2, the respondent submitted that it is trite to state that it is settled law that a court is said to be functus officio where that court gives its own decision and same is enrolled. That in such a situation, the court cannot possibly review its judgment either by the judge who made it or any other judge with a co-ordinate jurisdiction. Because that particular Court has no jurisdiction to review the judgment, it has to be done by the appellate Court. That this was the position reached by the Court of Appeal in Ororin v. Ekiti South-West Local Government [2007] 6 WRN 87 (Ratio 2). The respondent argued that going by the reliefs sought in this matter, this Court is being asked to review and make a finding that its judgment of February 14, 2007 is unconstitutional, null and void. The respondent, therefore, submitted that this Court cannot sit on appeal over its own judgment. Also that in the same vein, this Court cannot review its own judgment which was arrived at after listening to the parties. The respondent further submitted that at the time the judgment was given, this Court concerned itself with the issues canvassed by the parties and it is trite law that a Court cannot go outside the issues before it. The respondent then urged the Court to hold that it is functus officio to review, set aside and/or declare that its judgment of February 14, 2007 is null and void, because it is only an appellate Court that can consider the issues herein. The respondent concluded on this point that there is no quotient of breach of fundamental rights embedded in the said judgment and hence its failure when it attempted to invoke the jurisdiction of the said Court of Appeal which consequently dismissed same on the 27th day of October, 2010. On issue 3, the respondent invited this court to note that this suit was filed on the 7th day of May, 2010 when at the same time the legal tussle initiated by the claimant was also going on at the Court of Appeal, Lagos. That the matter pending at the Court of Appeal had to do with the same judgment (Exhibit AA1) being sought to be set aside in this matter. The respondent, therefore, submitted that the filing of this matter amounted to multiplicity of suits. The respondent concluded its submission by urging that, from the totality of the issues canvassed above, this Court should grant this application as prayed with punitive costs against the claimant. And that there is no counter-affidavit to this application and to that extent, it is deemed that same is not being controverted or opposed. In opposing the preliminary objection, the claimant filed its written address dated and filed on the 29th November, 2010. The address was accompanied by an 11-paragraphed counter-affidavit sworn to by one Nosiru Akinsemoyin, a Litigation Officer in the firm of the claimant’s counsel. The claimant submitted that the statutory jurisdiction of the National Industrial Court is derived from section 7(1) of the National Industrial Court Act 2006. That sub-section (1) confers this Court with exclusive jurisdiction in civil causes and matters relating to labour, including trade unions and industrial relations, environment and conditions of work, health, safety and welfare of labour and incidental matters; grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action or any conduct in contemplation or in furtherance thereof; or determination of any question as to interpretation of any collective agreement, any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute, the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, any trade union constitution and any award or judgment of the Court. That to begin with, the claimant submitted that section 7(1) is not all that is there as to the jurisdiction of this Court. That the right of the claimant herein to be given a fair hearing in Suit No. NIC/9/2000 is a constitutional right as enshrined in section 36(1) of the 1999 Constitution, and so the claimant seeks a remedy for breach thereof before this Court. That the maxim is ubi jus ibi remedium. The claimant submitted further that section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 has vested this Court with judicial powers extending to all inherent powers and sanctions of a court of law. That this Court, by virtue of section 6(5)(j) of the 1999 Constitution being a court authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws is one of the Courts to which section 6(6)(a) shall apply. To the claimant, the law is that where an action is taken which is held to be in breach of the rules of natural justice, the action is rendered null and void, citing Edewor v. Uwegba [1987] 2 SCNJ 18 at 39 per Nnamani, JSC. The claimant further submitted that where proceedings are null and void, this Court cannot be functus officio. Continuing, counsel contended that this court has inherent jurisdiction to hear proceedings for declaratory order and an order to set aside, citing the passage from the judgment of Lord Greene, M.R. in Craig v. Kanseen [1943] 1 A.E.R. 108 at page 113; [1943] KB 256 quoted with approval in Oyebimpe Apinke & ors v. T. A. Adesanwo [1962] WNLR 339 at 342, which is as follows – Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and that an appeal from the order is not necessary…The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity, and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained. That the Court in Apinke’s case further proceeded to hold as follows – A court has inherent power to set aside a judgment which it has delivered without jurisdiction. Their Lordships are of the same opinion. Asumming that the judge had no power on 29th June, 1949, to review his judgment of 10th May, 1949, he nevertheless had power to declare it a nullity and proceed to give fresh judgment. This court was also referred to Skenconsult v. Ukey [1981] 1 SC 6 at 27, 33 – 39. That since the remedies sought in this suit include a declaration that the judgment in Suit No. NIC/9/2000 is null and void, it is submitted that this Court has inherent jurisdiction to entertain this suit. Counsel to the claimant referred the court to Yonwuren v. Modern Signs (Nig) Ltd [1985] 2 SC 86 at 132 where the Supreme Court held thus – Since it has not been shown that the order of dismissal for want of prosecution was made without jurisdiction or that it was a nullity, the applicants cannot invoke the inherent jurisdiction of the court as the court has no inherent jurisdiction it has properly made… Flowing from the above dictum, the claimant submitted that it stands to reason that the claimant can invoke the inherent jurisdiction of the Court since the judgment dated 14th February, 2007 was made without jurisdiction, or it was a nullity. Furthermore, counsel submitted that the complaint of the claimant identified above is a serious one that ought not be waived aside, or terminated at this preliminary stage on the ground of lack of jurisdiction, referring the court to Akinbobola v. Plisson Fisko [1991] 1 NWLR (Pt. 167) 270 at 286 B – C where the Supreme Court per Karibi-Whyte, JSC held that it is necessary and in the interest of justice to give notice to the parties where the court suo motu intends to rely on an earlier order in another case between the parties, as the validity or applicability of the order may be questioned. Thirdly, the claimant further submitted that in determining whether this Court has jurisdiction to entertain this suit, this Court should adopt the principle of interpretation of the National Industrial Court Act 2006 that is broad and in response to the demands of justice and most liberal, citing Nafiu Rabiu v. The State [1980] 8 – 11 SC 130 at 149 per Sir Udo Udoma and section 19(b) of the National Industrial Court Act 2006 by which this court is conferred with jurisdiction to make a declaratory order. The claimant also sought to remind this court that the first remedy sought by it is a declaratory order. That construing section 19(b) liberally and broadly, the declaratory order sought in this case is in respect of the proceedings of the Court, and so this Court is competent and has jurisdiction in this suit. That it is trite law that there is hardly any limit to the type of declaratory order that a superior court of record may make, and that this Court is only limited by its discretion. The claimant continued that before the enactment of the National Industrial Court Act 2006, the law was that this Court lacked the power or jurisdiction to make declaratory order or grant injunction, citing Western Steel Works v. Iron & Steel Workers Union [1987] 1 NWLR (Pt. 49) 284 and Kalango & ors v. Dokubo & ors [2003] 15 WRN 32, which interpret section 15 of the Trade Disputes Act 1976 (later amended by Decree No. 47 of 1992 to be section 20(1). That if this suit had been instituted while the section of the Trade Disputes Act was in force, then it would have conceded that perhaps this Court lacks jurisdiction in this matter. To the claimant, section 53(1) of the National Industrial Court Act has repealed Part II of the Trade Disputes Act, clearing the way for a liberal and broad interpretation of sections 16 and 19 of the 2006 Act which did not appear in the repealed Act. The claimant then submitted that While the position of the law before 2006 was that the court lacks jurisdiction to grant declarations and injunctions, the 2006 Act has altered the position, so that as expressly enacted, this Court has the jurisdiction to make declaratory order and injunction. In response to the defendants’ submission that the judgment dated 14th February 2007, the subject matter of this suit, is a judgment on the merits, the claimant submitted that all the arguments in that issue go to the merit of the instant suit and should be discountenanced by this Court. The claimant further submitted that this Court, as with all other courts, is a court of justice and if there is any feature in the proceedings before the Court that gives an appearance of breach of rules of natural justice, parties, nay the court, should not shy away from confronting the issue and remedying it. And so to the claimant, the dictum in Ikeanyi’s case that fair hearing envisages that both parties are given an ample opportunity of presenting their respective cases is not helpful to the defendant. That the point of this suit is that the Court entered judgment by making finding or determination on point or points not canvassed or addressed by the parties. On the question of an appeal pending in the Court of Appeal, the claimant referred the court to paragraph 8 of the counter-affidavit filed herein, and submitted that there is no appeal from the judgment dated 14th February 2007, and consequently there is no multiplicity of actions. Concluding, the claimant submitted that it is always expedient to hear suits on their merits, and not to peremptorily shut out parties, as the defendant would have this Court do. The claimant then urged the Court to refuse the application and order that the suit should proceed to hearing. In reply on points of law, the defendant submitted that it is trite law that the parties are bound by their pleadings. That this position was reaffirmed by the Supreme Court in “Shell B.P. v. Abadi [1974] 1 SC 23 at 45 where Oguntade, JSC (as he then was)” stated as follows – It is now settled that in any action at the High Court, the parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and evidence adduced in support of these averments. (We must note the carelessness of counsel regarding the citation of this authority. In the first place, the name of the second party is actually Abedi, not Abadi as counsel put it. Secondly, the decision of the Supreme Court was delivered by Fatayi-Williams, JSC (as he then was) and not Oguntade, JSC as counsel indicated. And thirdly, the statement credited to the court would be at page 31 of the judgment and not page 45 as counsel again indicated. In fact the judgment ends at page 36.) To the defendant, it is apt to correct the impression created by the claimant’s counsel that in the judgment, a finding was made on issues not canvassed by or placed before the court by the parties. The defendant asserted that it is, to say the least, misleading. That the finding of the court to the effect that the claimant company qualifies to be categorized as a company in the public service of the federation and to that effect obliged to comply with the Federal Government circulars in contention was generated/derivable from the different positions canvassed by the parties as could be gleaned from the memoranda filed as contained in para. A pages 1 and 2 of the defendant’s memorandum and para. 1 page 1 of the claimant’s memorandum dated 4th December, 2001. That it is preposterous for the claimant to now recant that the issue of the status of the claimant was not properly addressed by the parties before finding was made thereon by this court. Further, the defendant submitted that the cases cited by the claimant on the issue of lack of fair-hearing and setting aside of judgment without jurisdiction are not relevant to the facts in issue in this matter. And that this is underscored by the fact that all findings of the court in the said judgment were based or derived from the issues hotly contested and addressed by the parties. That those cited authorities can only apply in a situation where judgment was given in the absence of either of the parties. Concluding, the defendant responded to the allegation that the principle of audi alteram partem had not been complied with as misplaced because to the defendant the records as exemplified by the memoranda belie the claimant’s allegation. The defendant also denied admitting anything in the claimant’s pleading by not filling a statement of defence. The defendant, therefore, urged this Court to grant this application as prayed. We have carefully considered all the arguments and processes filed by the parties in arguing this issue which was raised suo motu by the court. To our minds, the sole issue for determination in this suit is whether this court has jurisdiction to review and set aside its decision in Suit No. NIC/9/2000, the judgment of which was delivered on February 14 2007. The defendant had argued that this court has no jurisdiction to set aside its earlier judgment which was given on merit. The claimant on the other hand is of the view that this court should set aside its earlier judgment even when fraud is not in issue. A look at the processes filed shows that the claimant in this suit had tried unsuccessfully to appeal the said judgment at the Court of Appeal, Lagos Division. As a matter of fact, the said appeal was struck out with cost on 27th October 2010. We also note from the records that the present suit was instituted on the 7th May 2010 while the said appeal at the Court of Appeal over the said judgment was still pending. This is clearly an abuse of court process and is condemnable. Aside from being an abuse of court process, the counsel to the claimant in defence of the action proceeded on certain warped premises. For instance, counsel to the claimant argued that because the claimant is claiming for declaratory orders, that automatically vests jurisdiction on the court to review its judgment. Nothing can be farther from the truth. The power of the court to review its judgment is regulated by Order 19 Rules 18 and 19 of the National Industrial Court Rules 2007. Of particular note regarding this Order is Rule 18(2) which is emphatic that any application to have this court review its judgment or order must be made within 14 days of the date of the order. The judgment that the claimant wants reviewed was delivered on the 14th day of February, 2007. The present suit of the claimant was instituted on 7th May 2010, more than 3 years after the judgment of this court. Nothing depicts an abuse of court process more than this. Secondly, counsel to the claimant raised the argument that this court should review its judgment because his client was not given a fair hearing in that main suit. This is an unprofessional form of legal practice. When the counsel to the claimant appealed against the decision of this court to the Court of Appeal, he had to withdraw that action because the issue of fundamental rights (particularly fair hearing) was not an issue, for only on this ground would the Court of Appeal have the jurisdiction to hear his appeal. Counsel cleverly withdrew his appeal from the Court of Appeal and then filed the present review suit. To now make out a possible case for appeal, the counsel to the claimant is now raising the issue of fair hearing, arguing that they were not afforded one. In the words of counsel to the claimant, “the right of the claimant to be given a fair hearing in Suit No. NIC/9/2000 is a constitutional right as enshrined in section 36(1) of the 1999 Constitution, and so the claimant seeks a remedy for breach thereof before this Court. That the maxim is ubi jus ibi remedium”. Counsel must note that in circumstances such as this, fair hearing is not a talisman for recovery; it cannot be waved on a court in the hope of pressuring the court to toe the line desired by counsel. We took a second look at the judgment of 14th February 2007 and we are more than convinced that the claimant had all the opportunity to argue its case before the said judgment was delivered. It is not now that counsel would raise the issue of fair hearing and expect sympathy from the court. We, therefore, agree with the defendant that the allegation by the claimant that the principle of audi-alteram partem had not been complied with is misplaced because the records, as exemplified by the memoranda of the parties, belie the claimant’s allegation. In our view, therefore, the present suit is akin to asking this court to sit on appeal over its own judgment. It is trite law that once a judgment is given on merit and no fraud is alleged or proven, a court is functus officio and is barred from taking steps to review same. We agree with the defendant that the issue being canvassed in the present suit had been addressed in the judgment of this court delivered on February 14 2007. We also agree with the defendant that the present suit is an abuse of court process which ought to be dismissed and is hereby dismissed with cost put at N50,0000 payable by the claimant to the defendant. Judgment is entered accordingly. Hon Justice B. B. Kanyip Presiding Judge Hon Justice O. A. Obaseki-Osaghae Hon Justice J. T. Agbadu-Fishim Judge Judge.