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IN THE NATIONAL INDUSTRIAL COURT IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS I Ion. Justice H. H. Kanyip - Presiding Judge Hon. Justice V. N. Okohi - Judge Hon. Justice L. I. Kola-Olalere - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: November 3, 2009 SUIT No. NIC/46/2008 BETWEEN 1 Sunday lyere 2 Akims Sani 3 Gabriel Abolarin 4 Yaknbu Enyi (For themselves and on behalf of 26 other workers Of Nigerchin Electrical Dev. Co. Limited) Claimants AND Nigerchin Electrical Dev. Co. Limited Respondent REPRESENTATION 1. Prince Ademolu Adevvale, For the claimants 2. Cephas Caleb, with him is Miss Morayo Oyetunde, for the respondents RULING The claimants commenced this suit by way of originating summons dated 18th day of August 2008 together with the statement of Facts deposed to by Sunday Iyere, the 1st claimant. The statement of Facts is dated 20lh day of August 2008. The claimants are seeking For the Following reliefs - 1) A declaration that the present [claimants] are the parties directly involved in the matter which the respondent in Suit No. NIC/7/2006 is trying to protect and whose interests were not properly protected. 2) A declaration that the order of the Court made on August 29, 2006 in Suit No. NIC/7/2006 was defeated by the respondent who was the applicant in the said suit. 3) A declaration that the purported act of amicable settlement by the respondent in Suit No. NIC/7/2006 (Nigerehin Electrical Dev. Co. Ltd & 5 ors v. Nigeria Labour Congress} was a ploy to deceive the Court. 4) An order mandating the respondent to obey the order made on August 29, 2006 by this Court. 5) An order declaring the lock-out of 29lh June 2006 illegal, null and void and of no effect. 6) An order declaring the General Notice dated 27th June 2006 as null and void. 7) An order reinstating the claimants and pay all the salaries, allowances and benefits in lull from June 2006 till date. 8) And for such further order or other orders as the Court may deem fit to make in the circumstances. The claimants then framed three issues for the determination of the court, which are - 1. Whether the respondent can continue to lock out the claimants when the court has ordered them to maintain the status quo. 2. Whether the claimants are entitled to their salaries and allowances to date. 3. Whether the respondent can unilaterally determine the employment of the claimants which arose out of the trade dispute between the respondent and the claimants. The respondent, in reaction entered a conditional appearance and then filed a notice of preliminary objection urging that this Court lacks the jurisdiction to entertain this suit as constituted as same is incompetent and ought to be struck out. The grounds upon which the preliminary objection is brought are that - 1. The reliefs sought by the claimants vide their originating summons dated the 18lh day of August 2008 particularly reliefs 2, 3, 4, 5, 6 and 7 constitute an invitation to this Court to revive an order of Court made in Suit No. NIC/7/2006 and consequently invite this Court to re-open and re-visit its decision made in Suit No. N1CY7/2006, which had been struck out pursuant to a Notice of Discontinuance. 2. It is trite that where a suit has been struck out, the suit has terminated and the bottom knocked off the suit; consequently, the Court cannot revive the suit save on the application of a party to restore such a suit to the general cause list. 3. It is also trite that a superior court of record becomes functus officio as regards orders made by it and is precluded from reviewing, revisiting, reconsidering and/or otherwise reopening them. 4. The originating summons in this suit is incompetent same having been issued in contravention of the mandatory provisions of Order 3 Rules 1 - 7 of the National Industrial Court Rules 2007. 5. By reason of the facts stated in sub-paragraphs 1, 2, 3 and 4 above, the condition precedent to this Court assuming jurisdiction in this cause has not been met. In considering the preliminary objection, parties filed written addresses. In its written address, the respondent first abandoned the 3rd ground of its objection, which is to the-effect that it is trite that a superior court of record becomes functus officio as regards orders made by it and is precluded from reviewing, revisiting, reconsidering and/or otherwise reopening them. By abandoning this ground of objection, the court will not consider same in this ruling. The respondent then framed two issues for the determination of this court. They are - 1. Whether the originating summons of the claimants dated the 18th day of August 2008 and filed on the 19th day of August 2008 is competent, the same having been issued in a form and manner, which contravenes or is in violation of the mandatory provisions of Order 3 Rules 1 - 7 of the National Industrial Court Rules 2007. 2. Whether the interlocutory order made in Suit No. NIC/7/2006 and sought to be enforced by the claimants in this suit can be said to be subsisting even after the suit was discontinued. Regarding issue 1, the respondent contended that it is a general principle of law that the Rules of Court are made to be obeyed, observed and followed by the parties to a suit, particularly as they regulate matters in Court and help parties to present their case within the procedure made to achieve a fair and quick trial of cases. That there will be no order in judicial process where the rules governing the process are not obeyed. That parties in litigation do not have options but to comply with the requirements of the rules, referring to the Supreme Court case of Afribank (Nig.) Ltd v. Akwara [2006] 5 NWLR (Pt. 974) 568 at 646B and 655D; and ERN Ltd v. Halilco (Nig.) Ltd [2006] 7 NWLR (Pt. 980) 568 at 584 B - E. To the respondent, the courts always frown at disobedience to its rules, referring to the case of Noga Hotels International South Africa v. Nicon Hilton Hotels Limited & 5 ors [201)7] 7 NWLR (Pt. 1032) 86, where it was held as follows: The Rules of Court are in place with a purpose to serve. The purpose they set out to achieve can only be served if the Court ensures their being complied with. Therefore, rules of Court must not be treated with levity and must never be sacrificed for the purpose of convenience. The respondent then submitted that the originating processes by which this suit was instituted are in violation and contravention of the rules of this Court for the following reasons - a. The rules of this Court do not provide for commencement of an action by way of an originating summons but by way of 'complaint' supported by a 'statement of facts'. b. The statement of facts filed in the instant case was deposed to on oath as if it is an affidavit when in fact the process was meant to represent pleadings, or bear as it were the relevant averments that establish the cause of action. c. An originating summons is used where the Court is being invited to interpret a document, instrument or statute in a matter where the facts are not in substantial dispute. Based on the affidavit filed by the applicant herein, the issues for determination raised under the originating summons make it incumbent on this Court to take testimony and make findings of fact prior to coming to a decision in law in this case. Furthermore, the interpretation of a document or an instrument is not being called into question by the originating summons. The respondent continued that the claimants' originating summons together with the statement of facts are in clear breach of the rules of this Court, relying on Order 3 Rules 1 - 7, specifically Rules 1 and 4. Rule 1 provides as follows- Any action for determination by the Court shall be commenced by way of Complaint, which shall be filed and sealed. The Complaint shall be in Form 1 with such modifications or variations as circumstances may require (the emphasis is the respondent's). To the respondent, it is instructive to note that an examination of the originating summons reveals that it does not resemble a complaint as provided under the rules. The respondent continued by citing rule 4, which provides that - ...the complaint shall be accompanied by a statement of facts establishing the cause of action; copies of every document to be relied on at the trial; and, list of witnesses to be called (the emphasis is the respondent's). The respondent then submitted that the above mandatory provisions were not complied with by the claimants and so the suit is incompetent, relying on the case of EBN Ltd v. Halilco (Nig.) I.td (supra) where the Court stated that - Where mandatory rules are not complied with and they go to the root of the action, the writ of summons will not only be a nullity, but the entire proceedings predicated on it shall become void. You cannot put something on nothing and expect it to stay. It will fall. That the Court cited with approval similar decisions in the cases of Musa v. Hamza [1982) 7 SC 118; John v. Black [1988] 1 NWLR (Ft. 72) 648; Solanke v. Somefim [1974] 1 SC 141; and Macfoy v. VAC [19611 3 All RR 1169. Furthermore, the respondent contended that the process filed as statement of facts dated August 20, 2008 alongside the claimants' originating summons, is incurably defective and unknown to law and should be declared as null and void ab initio. That the form of the document raises confusion as to whether it is merely a statement of facts (akin to a statement of claim before the High Courts) or an affidavit. That the document, although titled a 'statement of facts' takes the form of an affidavit, which is a strange and dangerous innovation to the rules of this Court. To the respondent, it is clear that what the rules require is a mere statement of facts i.e. a court process akin to a statement of claim before the High Courts. That the implication is that every averment or allegation therein does not constitute evidence but must be proved before the Court; that is why the rules provide in addition to statement of facts, copies of documents to be relied upon at the trial, and a list of witnesses to be called. That though a statement of facts is not defined in the rules of this Court, it is clear from Order 9 of the National Industrial Court Rules 2007 that a statement of facts is by way of averment that substantiate a cause of action and not depositions sworn to in an affidavit. By way of analogy, the respondent submitted that in actions for judicial review, a statement of facts is deployed to establish a cause of action, referring to the Supreme Court case of Falobi v. Falobi [1976| 1 NMLR 169 and Civil Procedure (Volume 1) The White Book Service, 2005, Sweet & Maxwell, London page 1572 at 54.6.1. The respondent continued that where innovations of counsel in the system of civil procedure conflict with the rules of procedure, like in the instant case, they must give way to the rules. At that stage, that the Court will not be interested in counsel's innovations but in the use of the rules of Court as a tool for the just determination of a case, referring to the cases of Mobil Productions (Nig.) Unlimited v. Monokpo [2003] 18 NWLR (Pt. 852) 346 and Manson v. Halliburton Energy [2007] 2 NWLR (Pt. 1018) 211 at 217. Furthermore, that the claimants' statement of facts being a court process not known to law is null and void ab initio. In support of this submission the respondent referred to Mobil Productions (Nig.) Unlimited v. Monokpo (supra), where the Supreme Court held as follows - A court process, which is filed but not known to law is null and void ab initio. And if the court process results in a judgment, ruling or order [that judgment, ruling or order] is also null and void ab initio. The respondent continued that in the circumstance, the procedure relied upon by the claimants' originating summons in this suit is incompetent and a contravention of the rules of civil procedure of this Court. That in the case of EBN Ltd v. Halilco (supra), it was held that an incompetent originating process by which an action is begun robs the Court of its competence to entertain the matter before it. To the respondent, it is settled law that where a suit is instituted without due process of law, such an action robs the Court of its competence to hear and determine such a suit, relying on the Supreme Court Decision in Madukolu v. Nkemdilim [19621 2 SCNLR 341, where the Court held that a court is competent when - (i) It is properly constituted with respect to the number and qualification of its members; (ii) The subject matter of the action is within its jurisdiction; (iii) The action is initiated by due process of law; and (iv) Any defect in the procedure followed by a Court makes the proceedings impeachable on the wound of irregularity but does not necessarily render them a nullity. The respondent then submitted that in this instant suit, the failure of the claimants to institute this suit by due process of law has robbed this Court of its jurisdiction to hear and determine this suit. The respondent then went on to submit that an originating summons, although unrecognised under the provisions of the National Industrial Court Rules 2007, is a court process best suited where the facts are not in contention and in dispute. That it is best suited where any person is claiming an interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest, relying on the case of Famfa Oil Ltd v. AG, Federation [2003] 18 NWLR (Pt. 852) 453 at 467 D - G, where the Supreme Court held that originating summons - is a procedure where the evidence in the main is by way of documents and there is ""no serious dispute as to the facts but what the plaintiff is claiming declaration of his rights. If there are serious disputes as to the facts then a normal writ must be taken out and not originating summons. Furthermore, that though this Court has held in SOS Insp. Services (Nig.) Ltd v. PENGASSEN (20051 4 NLLR 140 at 151 F - G that the National Industrial Court is not a regular court where technicalities may be allowed to defeat the course of justice, where technicalities) Joist upon a party a situation wherein he is handicapped in presenting his case, the Court may, therefore, hold that the particular procedure adopted will occasion a miscarriage of justice. That in the case of Famfa Oil Ltd v. AG, Federation (supra), it was held that "a procedural irregularity should not vitiate a suit once it can be shown that no party has suffered a miscarriage of justice". That assuming without conceding that the originating summons was recognised under the rules of this Court, then its use by the claimant in the present instance is not suited to the justice of the case for the simple reason that the facts sought to be relied upon by the parties are in dispute. To the respondent, the mode of commencing this suit is offensive as this case is contentious being a dispute involving picketing of the respondent's premises under the auspices of the Nigeria Labour Congress. Consequently, that this suit should have been commenced by a complaint in accordance with Order 3 Rules 1 - 7 of the National Industrial Court Rules 2007, relying on the case of Alegbe v. Oloyo [1983] 14NSCC 315 at 316 Ratio 1, where the Supreme Court held that the action was misconceived from the beginning and the action of the appellant should have failed in the High Court as the facts of that case were in dispute. That the Supreme Court further held that since there was a dispute on questions of fact, the suit should have commenced by writ of summons and not by an originating summons. The respondent then referred to the cases of NBN Ltd v. Alakija [19781 Vol. 11 NSC 74 and Dim v. AG of the Federation [1986] 1 NWLR (Pt. 17) 471 and then urged the Court to hold that the procedure adopted by the claimant in this instant suit is offensive and will substantially hinder the respondent's ability to fairly conduct its case. The second issue is whether the interlocutory order made in Suit No. NJC/7/2006 and sought to be enforced by the claimants in this suit can be said to be subsisting even after the suit was discontinued. In arguing this issue, the respondent first reiterated four of the reliefs claimed by the claimants, which are — 1) A declaration that the present [claimants] are the parties directly involved in the matter which the respondent in Suit No. NIC/7/2006 is trying to protect and whose interests were not properly protected. 2) A declaration that the order of the Court made on August 29, 2006 in Suit No. NIC/7/2006 was defeated by the respondent who was the applicant in the said suit. (3) A declaration that the purported act of amicable settlement by the respondent in Suit No. N1C/7/2006 (Nigerchin Electrical Dev. Ltd v. Nigeria Labour Congress) was a ploy to deceive the Court. (4) An order mandating the respondent to obey the order made on August 29, 2006 by this Court. v The respondent then contended that these reliefs sought as well as the proceedings are incurably defective for the following reasons - (i) The order that the claimants seek to enforce by this action is an interlocutory order. (ii) The order sought to be enforced was made in a suit discontinued and, therefore, the order stands vacated, discharged and spent. (iii) The only way the order could he revived or resurrected is if the said suit that was struck out is relisted and that has not been done. (iv) Even if the suit was reinstated, the claimants were not parties to the action and, therefore, can take no benefit of any order therein. To the respondent, it is a settled proposition of law that where a suit has been struck out, the suit and all or any orders made therein stand terminated. Consequently, that a party to such an action or the Court cannot revive the suit or any interlocutory relief save on the application of a party to restore such a suit to the general cause list, relying on the Supreme Court decision in lyoho v. Effiong [2007] 11 NWLR (Pt. 1044) 31 at 57 - 58 G - A. That the Supreme Court in lyoho v. Effiong (supra) further held that until the suit is restored in the general cause list, no proceedings therein, has any footing at all with which to stand. The respondent also referred to the case of Nwankwo v. Omonoeze-Madu [2005] 4 NWLR (Pt. 916) 470 at 483, where the Court of Appeal held that an order of injunction does not exist in vaccuo. It must always relate to an existing substantive case. The respondent continued that the order granted in Suit No. N1C/7/2006 was an interlocutory order pending the determination of the motion on notice filed in that suit. Subsequently, as shown from the record of proceedings frontloaded by the claimant in this suit, that parties entered negotiations with a view to resolving the dispute. That the respondent in this suit (then the claimant in Suit NIC/7/2006) discontinued the suit and this Court struck out same. The respondent then submitted that the order granted by this Court in Suit No. NIC/7/2006 cannot exist in vaccuo. That in view of the fact that Suit No. N 1(77/2006 was struck out, the interlocutory order granted by this Court on 29th August 2006 became spent by operation of law. Therefore, there was nothing to be enforced. To the respondent, whatever order or proceedings was before this Court in Suit No. NIC/7/2006 (Nigerchin Electrical Development Company Ltd and 5 ors v. Nigerian Labour Congress), it no longer has any validity, effect or force given the striking out of the said suit on the September 12, 2007 without the determination of any issue on the merits before this Court. The respondent continued that the only way in which a party may take advantage of orders made in a suit that has been struck out is to relist such a suit as a condition precedent. That there is nothing in law preventing a party from filing or instituting another action. The respondent referred the court to the case of Idoko v. Ogbeikwu [2003 1 7 NWLR (Pt. 819) 274, where it was held that- A striking out order is akin to a non-suit order, which decides nothing as regards the matter in dispute, but merely gets rid of the pending action, leaving the Plaintiff at liberty to begin de novo either in the same or subsequent suit. Its effect is to terminate the proceedings in which it is made. Furthermore, that the courts are consistent on the point that an order striking out a matter clearly preserves to the parties the right to re-litigate the matter because there has been no proper determination on the merits. That though a party in a suit that was struck out can exercise the option of relisting or filing a fresh suit, that option will still not avail the claimants in this case because the claimants in this instant suit were not parties to Suit No. NIC/7/2006, further, the respondent in this suit (then the claimants in Suit No.NIC/7/2006) did not apply to relist this suit; neither did the Nigeria Labour Congress (the respondent in Suit No. NIC/7/2006). The respondent then submitted that that the proceedings before the Court in Suit No. NIC/7/2006 no longer has any footing, and had indeed decided nothing to be enforced given the striking out of the suit. That the claimants in this instant suit cannot maintain this action as presently constituted as the basis for this instant suit is unsustainable in law. In conclusion, the respondent urged the Court to discountenance the claimant's originating summons and statement of facts deposed to by Sunday lyere, both dated the 18th day of August 2008 and 20th day of August 2008 respectively. The respondent further urged the Court to dismiss same as incompetent and offensive having regard to the fact that this Court has no jurisdiction to entertain the reliefs sought therein as presently constituted as same are brought pursuant to an order of Court that has been spent by the operation of law. In the alternative, the respondent urged the Court to order the claimants to the fresh processes in consonance with the spirit and intendment of Order 3 of the National Industrial Court Rules 2007. In reaction to the submissions of the respondent, the claimants raised three issues for the determination of the court. The issues axe - 1. Whether the claimants complied with the rules of this Court in the commencement of this suit. 2. Whether the respondent's notice of preliminary objection is a demurrer. 3. Whether the respondent was right in its determination not to He a reply to the claimants' originating summons. Regarding issue 1, the claimants first cited Order 3 Rules 1, 2, 3, and 4 of the National Industrial Court Rules 2007 as follows - Rule 1. Any action for determination by the Court shall be commenced by way of Complaint, which shall be filed and sealed. The Complaint shall be in Form 1 with such modifications or variations as circumstances may require. Rule 2. The Complaint shall state specifically the relief or reliefs claimed either singly or in the alternative and it shall not be necessary to ask for general or other relief, which may be given as the Court may think just. Rule 3. A Claimant may alter, modify or extend the claim without any amendment of the endorsement on the Complaint: provided that the claimant may not completely change the cause of action endorsed on the Complaint without amending it. Rule 4. The Complaint shall be accompanied by - {i) a statement of facts establishing the cause of action. (ii) copies of every document to be relied on at the trial. (ii) list of witnesses to be called. The claimants then submitted that because the claimants' originating summons, which is the complaint, is accompanied by a statement of facts establishing the cause of action, copies of every documents to he relied on at the trial, and the list of witnesses to be called means that it has substantially complied with the rules of this Court. To the claimants, the Supreme Court in the case of Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 at page 571 - 572 11 - A & 13 has this to say on the commencement of action by originating summons - In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts leads to a legal decision on the matter. That is not the position in the proceedings commenced by originating summons where facts do not play a central role but an infinitesimal role, if at all. The claimants then submitted that there is no dispute as to the facts before the court as the issues raised in the originating summons before the Court are constituted of documents relating to the employment between the claimants and the respondent, referring to Famfa Oil Ltd v. AC, Federation [2003] 12 SCM 85 at 91, where it was stated that - The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest...It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and not originating summons, Doherty v. Doherty [1968] NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the fact must be taken out and will become operative once the judge in chambers has signed it thus given direction for its service. The applicant is not the one to take the summons to the judge; this is a purely administrative matter of the court's registry, which does not involve the applicant. Thus failure of the judge to sign the originating summons is mere procedural irregularity and it cannot by [any figment) of imagination be placed on the shoulders of the plaintiff (Alhaji Dahiru Sande v. Alhaji Akeem Abdullahi [1989] 3 NSCC Vol. 20 177, 178. A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice. To the claimants then, they have duly complied with the rules of this Court in the commencement of this suit and have not violated or contravened any of the provisions of the rules of Court as being canvassed by the respondent. Regarding issue 2 i.e. whether pleadings in an earlier case can be used in a subsequent suit, the claimants contended that pleadings and proceedings in an earlier case can be used and relied on in a later suit as is the case in this present case. They referred the Court to the case ofAkadiri v. Atcmda [1986] 3 N WLR (Ft. 27) 113, where it was said that - The pleadings in an earlier case may he referred to show what was in that earlier case, the claim or defence sought to he set up and point to inconsistency on the part of one party or the other to the later case. The case of Alade v. Aborishade [1960J 5 1-SC 167 and 173 applied. The claimants then submitted that the respondent's reference to the earlier suit, which it initiated is mere antics to deceive the Court after benefiting from the order granted by this Court hut failed or refused to take the responsibility and obligation associated with the order before the questionable discontinuance of the said case. That the respondent can only pray the Court to strike out any of the claimants' reliefs, which they think are offensive but not the whole suit as being canvassed by them. The claimants then urged the Court to hold that the claimants' reference to the earlier case with Suit No. NIC/7/2006 is in order. Regarding issue 3 i.e. whether the respondent was in its determination not to file a reply to the claimants' originating summons, the claimants submitted that the respondent's failure to file its defence to the claimants' originating summons is fatal to the respondent's case. The claimants then cited Order 8 Rule 5(1) of the rules of this Court, which to them states as follows — Where a defendant or respondent...and failure of the defendant to file a defence or reply to the claimant/respondents' originating application is tantamount to admitting all the deposition in the Statement of Facts and therefore the claimant is entitled to judgment. We must note quickly that nowhere in the rules of this court can this quotation by counsel to the claimants be found. Order H Rule 5(1) of the rules of this court actually state as follows - Where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the Court may proceed to hear the matter and give judgment. We do not, therefore, know which rules of court counsel to the claimants is quoting. The claimants went on to refer to and rely on the following statements in Inakoju v. Adekki' supra at 705 E - C - If a plaintiff files his statement of claim or, as in the instant case, where the suit is commenced by originating summons, an affidavit in support of the originating - summons and the defendant refuses, fails or neglect to file a statement of defence or, as the case may be, a counter-affidavit, he will be deemed to have admitted either the statement of claim or the affidavit in support thus leaving the court seized with the matter with the authority to peremptorily enter judgment for the plaintiff without either hearing evidence or without a counter-affidavit (Oke v. AivL'dun 11986] 2 NWLR (Pt. 23) 548; Ndukauba v. Kolomo [2005] 4 NWLR (Pt.915) 411; Zaboley International Ltd v. Omogbehin [2005] 17 NWLR (Ft. 953) 200 referred to). Per Akintan, JSC at 684 - 685 G - C: The implications of failure of the appellants to enter an appearance and file a counter-affidavit to controvert the averments in the affidavit filed in support of the originating summons are: (1) by filing and relying on preliminary objection rather than filing a counter-affidavit to the merit of the case, they have demurred, contrary to the provisions of Order 24 of the Oyo State High Court (Civil Procedure) Rules which abolished demurrer; and (2) it means that the appellants have admitted the facts deposed to in the affidavit filed in support of the originating summons. They cannot, therefore, complain that they were not allowed to file a counter-affidavit since they have admitted the facts in the said affidavit in support. They can also not complain that they were denied fair hearing since they had the opportunity of putting their defence across, if any, but chose not to avail themselves of that opportunity: See Igbok\ve v. Udobi [1992] 3 NWLR. (Ft. 228) 214; Oyeyipo v. Oyinlola [1987] 1 NWLR (Ft. 50) 356; and Omo v. JSC. Delta State [2000] 12 NWLR (Ft. 682) 444. Per Ogbuagu, JSC at 705 - 706: As a matter of fact, from the submission of Ayanla a Esq., in respect of their issue 1 in paragraphs 4.3 and 4.4 of their brief, it is clear/plain to me that by the said submissions, the appellants refused to file a counter-affidavit to the originating summons because according to learned counsel, the averments in the affidavit in support were inadmissible evidence and, therefore, it was a waste of time for the appellants to respond to the same. Fine! By this submission and stance, any complaint by the appellants of denial of fairing can by no stretch of imagination be sustained by me. If anything, it confirms without any equivocation that the appellants had the opportunity to file a counter-affidavit but they voluntarily, decided not to do so because for them it was a useless exercise to do so and anybody expecting them to so file was wasting his time. Period! On this ground again, I dismiss the said complaint as being most frivolous and grossly misconceived more so, when the learned counsel, made a U-turn by stating that the appellants were still within time to enter appearance and file a counter-affidavit in reaction to the same affidavit in support of the originating summons which he had declared to be inadmissible. Indeed, he urged the court in the alternative of dismissing the suit for lack of jurisdiction to remit the case to the trial court where according to him the appellants will be free to file their counter-affidavit. This request amounts with respect to blowing hot and cold at the same time. The claimants then submitted that the fact that the respondent want to rely on technicalities rather than file a reply to the claimants' originating summons means that the respondent has admitted the facts as stated in the statement of facts filed in support of the originating summons. They then urged the Court to dismiss the objection of the respondent and give judgment to the claimants. Additionally, the respondent went on to ask how a court is expected to know when facts are in contention or dispute where the respondent failed to file any process against the assertion of the claimants. That the Court is not a Court of speculation as the respondent could not have expected the Court to conjecture or speculate the nature of the facts that are going to be in dispute. That the Court will need to look at the merit of an originating summons filed and the reply by the respondent, before it can decide on the suitability of the mode of the commencement of the action. That where the Court finds that the originating .summons is not suitable, the Court is enjoined to use its discretion to order the parties to file the appropriate pleadings. In conclusion, the claimants urged the Court to dismiss the respondent's objection to this suit. In replying on points of law, the respondent reiterated the issues framed by the claimants and then contended that the claimants' written address lacks merit and is incompetent on the following grounds — 1) The case of Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423, which the claimants rely upon to justify commencing this action with an originating summons is distinguishable from the instant case, on the ground that the court in Inakoju v. Adeleke, was not faced with a dispute of facts as between the parties, but was faced with the construction/interpretation of section 188 of the 1999 Constitution, which justified the use of an originating summons. In the instant case the claimants are not inviting this Court to construe or interpret a particular provision of an instrument, document or statute, and there is substantial dispute between the parties as to the facts of this case. 2) The claimants appear to have misconceived issue 2 of the respondent's written address dated 19lh December 2008, and thereby misapplied the decisions of the courts in the cases ofAkadiri v. Atanda [1986] 3 NWLR (Pt. 27) 113 and Alade v. Aborishutle [I960] 5 FSC 167 at 173. 3) Contrary to the submissions of the claimants, the respondent complied with Order 8 Rule 5(1) of the National Industrial Court Rules 2007. The respondent, in compliance with the said Order 8 Rule 5(1), entered appearance by filing the Memorandum of Conditional Appearance (Order 8 Rule 1) dated 6th October 2008, and also filed a Notice of Preliminary Objection dated 20th October 2008 in defence of the claimants' action, which is also in line with the provisions of Order 5 Rule 2(1). The respondent then proceeded to react on the issues as raised by the claimants. Regarding issue 1, i.e. whether the claimants complied with the rules of this Court in the commencement of this suit, the respondent simply relied on the submissions and arguments it made under issue 1 of its written address, filed in support of its notice of preliminary objection, that the originating processes by which this suit were instituted are in violation and contravention of the rules of this Court, on the ground that the rules do not provide for commencement of an action by way of an originating summons That even in cases where the rules of Court allow for originating summons, the latter is only appropriate when there is no dispute as to the facts, and the Court is invited to interpret a document, instrument or statute. In specific reply to the questions of law raised in the claimants' written address, the respondent submitted that the court in the case of Inakoju v. Adeleke [2007] 4 NWLR (Ft. 1025) 423 was faced with the construction of section 188 of the 1999 Constitution. Therefore, that the use of an originating summons was justified. Accordingly, the Court at page 571 A - G specifically A - B held that - The action was commenced in the High Court by originating summons. Commencement of action by originating summons is a procedure, which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. See: Dim v. AG of the Federation [1986| 1 NWLR (Pt. 17) 471; Obasanya v. Babafemi [2000] 15 NWLK(Pt. 689) 1. Furthermore, that the Supreme Court in the Inakoju v. Adeleke (supra) stated at page 575 D — K as follows: The fulcrum of this appeal is the interpretation or construction of section 188 of the Constitution, the state counterpart of section 143 of the Constitution, which provides for the removal of the President or Vice-President from office. The respondent then relied and re-emphasised all the authoritative submissions and arguments made in its written address and urged the Court to discountenance the arguments made by the claimants, and accordingly resolve issue 1 in favour of the respondent. Regarding issue 2, i.e. whether the pleadings in an earlier case can be used in a subsequent suit, the respondent contended that the crux of the claimants' argument on this issue is that pleadings and proceedings in an earlier case can be used and relied on in a later suit as in the present case. That this argument purports to be a response to issue 2 of the respondent's written address wherein it was submitted that whatever 'order' (not pleadings) was before this Court in Suit No. NIC/7/2006 (Nigerchin Electrical Development Co. Ltd & 5 ors v. Nigeria Labour Congress), no longer has any validity, effect or force given the striking out of the said suit on 12lh September 2007 without the determination of any issue on the merits. That the decisions Akadiri v. Atanda [1986] 3 NWLR (Pt. 27) 113 and Alade v. Aboriahade [1960] 5 FSC 167 at 173, which the claimants are relying upon in support of this issue, do not apply to the facts and circumstances of this case. That it appears the claimants misconceived the issue as raised by the respondent, and also misconceived the application of the decisions of the courts in the above cited decisions. To the respondent, the decisions in Akadiri v, Atanda and Alade v. Aborishade are simply upholding the established principle of law that evidence given in an earlier case, by persons who also testify in a later case, may be used for cross-examination as to credit but it is of no higher value than that. Furthermore, that pleadings in an earlier case may he referred to forr the following limited purposes, which are — 1. To show what was in that earlier ease, the claim or defence sought to he set up; 2. To point to inconsistency on the part of one party or the other to the latter case; and 3. The judgment in an earlier case may properly be used in a later case, on a plea of res Jiullcatci, when the incidents necessary to support such a plea are fully observed. The respondent referred the court to page 121 paragraphs F - F of Aketdliri v. Atanda and page 115 lines 30 - 45 of Alade v. aborishude. That the Supreme Court in Alade v. Aborishade strongly pronounced that - ... the legal position which this Court has stated on numerous occasions, which is that "evidence" given in a previous case can never be accepted as evidence by the Court trying a later case except where section 34(1) of the Evidence Ordinance (now Act) applies. The respondent then reproduced section 34 of (he Evidence Act Cap. El 4 LFN 2004, for this Court to be properly guided. The section provides that - Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it slates, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstance of the case, the court considers unreasonable: Provided a) That the proceeding was between the same parties or their representatives in interest; b) Thai the adverse party in the first proceeding had the right and opportunity to cross-examine; and c) That the questions in issue were substantially the same in the first as in the second proceeding. The respondent proceeded to urge the Court to discountenance arguments in respect of issue 2 as raised by the claimants for being irrelevant to the facts and circumstances of this case, and therefore incompetent, and for the Court to uphold the respondent's arguments in its written address. Regarding issue 3, i.e. whether the respondent was right in its determination not to file a reply td the claimants' originating summons, the respondent contended that the claimants' argument on this issue is that the respondent did not file its defence to the originating summons and that means it has admitted the facts slated in the statement of facts filed in support of the originating summons. That the claimants placed reliance on Order X Rule 5(1) of the National Industrial Court Rules 2007. In reply, the respondent first reproduced the relevant provisions of the rules and (hen submitted that it is wrong for the claimants to argue that the respondent is in breach of Order 8 Rule 5(1) as seem down above. That it is in the record of this Court that the respondent entered appearance by filing the Memorandum of Conditional Appearance (Order 8 Rule 1) dated 611 October 2008. Furthermore, that the respondent filed a notice of preliminary objection dated 210 SOctober 2008 in defence to the claimants' action, to which both parties filed written addresses. That it is a well-known principle of law, incorporated in the rules of this Court, that a party may promptly raise objection on an irregularity and/or illegality of the other party, before taking any fresh steps, otherwise he will be presumed to have waived the irregularity, relying on the cases of National bank (Nig) Ltd v. Shoyoye (citation not supplied) and Skenconsult (Nig) Ltd v. Ukey (1981] SC 181. Also referred to is Order 5 Rule 2( 1), which provides that - An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. To the respondent, Inakoju, relied upon by the claimants, was based on the peculiar provision of the High Court (Civil Procedure) Rules 1988, which is different from the governing principles as sanctioned under Order 5 Rule 2(1) of the rules of this Court. The respondent then urged the Court to hold that the respondent is not in breach of Order 8 Rule 5(1), and to discountenance arguments of counsel to the claimant with respect to issue 3 for lack of merit. The respondent went on to observe that counsel for the claimants in his submission on this issue sought to mislead this Court by misrepresenting the provisions of Order 8 Rule 5(1) and importing extraneous words into the provisions of the rule in order to win his argument. That this act of counsel in attempting to mislead the Court is bad, unethical and unacceptable; it is a very serious matter and indeed sad for counsel, whose burden and inescapable duty is to assist the Court, to appear to be intent in misleading the Court. That in the case of /. 8 & B Construction Ltd v. Ahmed [1998] 9 N WLR (Pt. 566) 486 at 493 F - 11, counsel made a misrepresentation of facts to the Court of Appeal by ascribing a passage to be the finding of the lower Court, which on a careful perusal of the records was found to be false. The Court held that- I must observe sadly that this passage ascribed to be the finding of the lower Court was a complete misrepresentation by the Counsel. This passage was never part of the ruling of the lower Court at any page of the record. It is indeed a submission made by the Counsel himself in his address. I do not understand what benefit the Counsel was trying to derive by making a false submission. I find this dubious way of practice thoroughly regrettable, because it is this type of uncalled -- for smartness that shakes and distorts the confidence of the bench to submissions made by Counsel either in a brief of argument or oral in presentation of arguments before the Court. The respondent also relied on the dictum of Tobi, JCA (as he then was) in Aimika Community Bank v. Olitu [20001 12 NWLR (Pt. 682) 641 at 661 E - F, where His Lordship held as follows - 15 While Counsel has all the right in law to handle his client's case to the best of his professional ability, he has not the right to mislead the Court, and deliberately too for that matter. It is rather sad that learned Counsel for the appellants decided to mislead the Court in the way he did, all in his effort to win this appeal. That is not the best advocacy. I do not want to say more. Issue (d) fails and I so hold. The respondent then invited the court to condemn this unethical and reprehensible conduct of counsel. In conclusion, the respondent urged the Court to discountenance the claimants' originating summons and statement of facts deposed to by Sunday lyere and to strike out same as incompetent and offensive having regard to the fact that this Court has no jurisdiction lo entertain the reliefs sought therein as presently constituted as same are brought contrary to the mandatory provisions of the rules of this Court and pursuant to an order of Court that has been spent by the operation of law. We have carefully considered the submissions of both parties in this matter. We agree with the respondent that the conduct of the counsel to the claimants in attributing to Order 8 Rule 5(1) of the NIC Rules 2007 what is not provided therein is unethical and must be condemned in very strong terms. Counsel must at all times assist the court in arriving at a just determination of the matter before it, not mislead it. To deliberately attribute to a law what is not contained in it is not only misleading, it smacks of unprofessional practice unbecoming of counsel. We condemn it and take exceptions to such practice. The respondent's objection is hinged on the twin issues of the improper commencement of this suit via an originating summons instead of the complaint sanctioned by the National Industrial Court Rules 2007 and the fact that the claimants in this suit who were not parties in Suit No. NIC/7/2006 cannot take the benefit of the interlocutory order made in that suit (Suit No. N1C/7/2006) since that suit was discontinued and so cannot he said to be subsisting. The claimants' answer on the other hand is that the respondent's preliminary objection is incompetent since the respondent did not react to the claims of the claimants in the first place. In any event, the claimants asserted that they complied with the National Industrial Court Rules 2007 when they filed this action. The question whether the claimants properly commenced this action by using an originating summons instead of a complaint as provided under the National Industrial Court Rules can pretty well be given a straightforward answer. While we acknowledge that the NIC Rules provide for a complaint as the process through which an action should be commenced, this court has not been dogmatic about this if the cause of justice will be served. The essence of the complaint is that the defence party is made aware of the case he is to-answer and that traps are not laid for him. Once the originating process achieves these aims, this court has been flexible in permitting parties to go on with their case even when a process other than a complaint is used in commencing an action. See, for instance, the case of Oyo State Government v. Alhaji Bashir Apapa & ors unreported Suit No. NIC/36/2007 delivered on October 3, 2007, where this court relaxed the strict application of the rules. In any event, the defect complained of by the respondent is curable by a simple order of this court mandating the claimants to file the necessary complaint. If this were the only complaint of the respondent, this court cannot on it alone strike out this matter simply because the claimants came by way of the wrong process. The more fundamental complaint of the respondent is whether the claimants can build their action on a case that they were not even parlies to. The claimants are seeking to enforce an interlocutory order that they were not parties to. The suit in issue (Suit No. NIC/7/2006) was one between the present respondent and the Nigeria Labour Congress. In the case of Nnorum v. Comrade Nkem Nwauzor & ors unreported Suit No. NIC/2/2007 delivered on February 13, 2007, this court reiterated that membership of the NLC belongs to affiliated unions not individuals. So when the NLC sues or is sued and orders are made against it or in its favour, can individuals lay claims to them? In other words, can the claimants, as individuals, then lay claims to an order made against NLC? We have not been shown by the claimants how they are related to and so entitled to the order made in Suit No. NIC/7/2006, a matter that they were not parties to. In this regard we agree with the submissions of the respondent and so hold that the present suit is incompetent. For the reasons given, the preliminary objection of the respondent has merit and is hereby upheld. The case of the claimants is consequently struck. 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 J. T. Agbadu-Fishim Judge