Download PDF
This suit was commenced by way of complaint which was filed on the 17th day of May 2013. The Defendants filed their Memorandum of Appearance on the 5th day of June 2013, and then filed their Statement of Defence on the 16th day of July 2013 without any motion for extension of time. When the matter came up on the 25th day of September 2013, Counsel to the Claimant called the court’s attention to the fact that the Defendant was out of time in filing its Defence processes, without bringing a Motion on Notice for extension of time to regularize same before the court. He then urged the court to strike out the Memorandum of Appearance and Statement of Defence filed by the Defendant. The court ruled that this action amounted to an irregularity, having contravened order 9 Rule 1 of the National Industrial Court Rules 2007. The Court relied on order 5 Rule 1 of the National Industrial Court Rules 2007 and struck out the Memorandum of Appearance and Statement of Defence. The Defendant has now brought a Motion on Notice asking this court to set aside its order made on the 25th day of September 2013, and an order deeming the Memorandum of Appearance and the Statement of Defence as properly filed and served. Defence Counsel’s case is that they have paid the necessary penalties for late filing of the Memorandum of Appearance and Statement of Defence. Counsel relied on the provisions of Order 19 Rule 18 of the National Industrial Court Rules and submitted that this court has the power to review, revoke or vary it’s order if : (a) The order was made in the absence of a party entitled to be heard; (b) New evidence has become available since the making of the order; (c) The interest of justice requires such review. He also relied on the case of Oloruntoba-Oju vs. Abdul-Raheem (2009) All FWLR (pt 497) 1 at pg 29 and Abubakar vs Yaradua (2008) All FWLR (Pt404)1409 SC. He submitted that the issue at hand was a mere technicality, since the papers are already before the Court, and the penalty has been paid. The Claimant’s counsel did not object to the motion. I have considered the argument of the Defence, counsel detailing reasons why this court should review or revoke its order made on the 25th September 2013. Defence Counsel in his written address, stated that: “In conformity with order 25 Rule 4 of the National Industrial Court Rules 2007, the Defendant/Applicant DULY PAID more than the requisite penalty for late filing of the Memorandum of Appearance and the Statement of Defence. Reliance is placed on Exhibits c & D attached to the supporting affidavit. It is of moment that the rules of this honourable court do not require a formal application to cure irregularities of late filing but requires the payment of penalties” One thing that is clear from the above submission of counsel is that there is an admission of the fact that he was out of time, hence the payment of penalty. For clarity, it has been the practice of this court that an application is required to cure irregularities, especially where the rules have stipulated specific procedures to be followed and time frames are specified. Counsel has concluded wrongly, that the rules of this honourable court do not require a formal application to cure irregularities of late filing but requires the payment of penalties. This is a wrong assumption. Order 8 Rule 1 of the rules of this court provides for a 14 days period within which a Defendant may file its Memorandum of Appearance after being served with an originating process. Order 9 Rule 1 also provides for a 14 days period within which a Defendant may file its Defence or counterclaim after being served with a complaint. Order 15 of the National Industrial Court Rules provides that “where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the court may adopt such procedure as will in its view do substantial justice to the parties”. Section 254 (D)(1) of the amended constitution provides that the National Industrial Court shall have all the powers of a High Court. Order 11 Rule 8(1) of the National Industrial Court Rules provides that the court may, on the application of any party, make any order under the Act it considers necessary. The cumulative effect of all these provisions cited, is that upon noticing that he was out of time, the Defendant ought to have brought an application to court to regularize his position, to wit, filing a motion for extension of time. Perhaps, if counsel was in court on the said day, he may have made a verbal application for extension of time, and the court may have used its flexible approach to grant a verbal application deeming the filed processes as properly filed and served. Strictly speaking, once there has been an irregularity or a default, the proper thing to do is to apply to the court to regularize such an irregularity. Payment of penalty can never and has never taken the place of procedure. Order 25 Rule 4 provides that the court may, as often as it deems fit, and either before or after the expiration of the time appointed by these rules, or by any judgment or order of the court, extend or adjourn the time for doing an act or taking any proceeding. The provision to this rule as it relates to payment of penalties has been reviewed by Section 6 of the National Industrial Court Practice Direction 2012. The review is an upward review of the penalty payable by a defaulting party. Therefore, Counsel is under a wrong assumption that he paid more than the requisite penalty. See Section 6 of the National Industrial Court Practice Direction 2012. It should be noted that payment of penalty does not constitute a waiver. Rather, it is a condition precedent to the filing of the processes, which should be filed along with a motion for extension of time. Order 19 Rule 18(1) (d) gives this Court the power to review any order made by it if the interest of justice requires such review. Order 19 Rule 18(2) provides that an application for review shall be brought within 14 days of the date of the order. The order sought to be reviewed was made on the 25th of September 2013 and this application for review was brought on the 8th of October 2013. It falls within the 14 days period within which the application ought to be brought. For this reason alone and in the interest of justice, I proceed to review my earlier order as follows: A. The Defendant shall proceed to file a Motion on Notice for extension of time deeming the earlier filed Memorandum of Appearance and Statement of Defence as having been duly filed and served, the appropriate penalties having been paid. B. The earlier filed Memorandum of Appearance and Statement of Defence will only be deemed as duly filed and served, upon the filing of a motion on notice to regularize same. C. Subject to A & B above, the earlier order of this court made on the 25th day of September 2013 striking out the Defendant’s memorandum of appearance and statement of defence, is hereby revoked. Ruling is entered accordingly. Hon. Justice O.Y. Anuwe Presiding Judge.