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NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo President Hon. Justice B.B. Kanyip Judge Hon. Justice M.B. Dadda Judge DATE: 24th April, 2008 SUIT NO. NIC/16/2007 BETWEEN Medical and Health Workers Union of Nigeria Claimant/Applicant AND 1. Hon. Minister of Employment, Labour and Productivity 2. Hon. Minister of Health Respondents 3. Hon. Attorney-General of the Federation REPRESENTATION Mr. I. A. Oputa-Ajieh Esq for Claimant/Applicant (with him Mr. A. Oghaghban) Mr. Paul Ogbu for 2nd Respondent Mr. F.M. Femi for 3rd Respondent Mr. A.C. Osagie (PSC) for 1st Respondent RULING This matter was originally filled at the Federal High Court, Abuja Division by the present claimant/Applicant some time in 2002 but the court declined jurisdiction after considering the processes filed. The matter was then transferred to this court. Also all the processes filled at the Federal High Court were attached with the referral instrument. The counsel to the claimant/Applicant filed on 14th May 2007 a motion on notice dated 9th May, 2007 and attached thereto is an affidavit of 10 paragraphs deposed to by one Ibrahim Abiodun Amfowocha a litigation officer in the chambers of the claimant/Applicant counsel. The 3rd Respondent filed a counter affidavit on 10th May, 2007 which is dated the same date. The 1st Respondent on its part filed a preliminary objection on 29th June 2007 which is dated 28th June, 2007. The second Respondent filed on 29th June, 2007 a counter affidavit dated same date and attached thereto exhibits 'A', 'B', 'C',. The Claimant/Applicant filed on 19th January, 2008 a notice of discontinuance dated 31st December, 2007. The Claimant/Applicant while moving its application for discontinuance on 15th January, 2008 urged the court to exercise its powers under Order 19 Rule 17 of the NIC Rules 2007 and to strike out the matter. While all counsel to the Respondents did not object to the discontinuance of the case as requested, they are opposed to striking out the matter. They want the court to instead dismiss same. The Respondents' counsel contention is that they appeared before the court on many occasions with all the processes needed filed and pleadings exchanged, and so insisted that the matter be dismissed. The court was referred to the case of "LEONARD ERONINI & 4 ORS V. FRANCIS IHEUKO (1989)3 SCNJ 130 at 131 ratios 1,2,3,4 & 5 and also to Order 19 Rule 17 of the NIC Rules 2007 in support of the dismissal of the case. We have carefully considered the submissions of all the counsel to the parties in respect of the Claimant/Applicant application for discontinuance of the case and without any opposition from the Respondents. Accordingly the application for discontinuance is hereby granted as provided by Order 19 Rule 17 of the NIC Rules 2007. However, this same Rule has further provided that "the court shall upon discontinuance or withdrawal make such order or orders as may be deem just". It is the last leg of the provision of the Rule that the Respondents are relying on and urging the court to dismiss the case rather than striking it out. This is the discretion vested in court to exercise upon granting an application for withdrawal or discontinuance of a matter and this powers vested in the court is to be exercised judiciously. The case of ERONINI V. II-IEUKO (supra) cited by the respondents in support of their argument that the matter to be dismissed and not struck out after the discontinuance of the case, is distinguishable from the facts of this case. ERONINI'S case, relates to an action for declaration of title to land, damages for trespass and injunction. In that case parties' pleadings were filed and exchanged and hearing was commenced with the respondent giving evidence which was at variance with the statement of claims and his counsel had to stop him and applied for the discontinuance of the suit. The trial judge granted the application for discontinuance of the case and struck out the matter. The case went to the Court of Appeal which affirmed the decision. On further appeal to the Supreme Court it was held inter alia that "whenever a suit is being discontinued after some evidence has been given, a trial judge is bound to consider the effect of the evidence so far given before he can correctly arrive at a proper order to make i. e. whether an order for dismissal or order for striking out. That had the learned trial judge and the Court of Appeal adopted this course, they would have seen that the propel order to be mode in this case when the respondent had done irreparable damage to his case before applying to withdraw was one of dismissal and not striking out ". However, in the present case before us though the parties' pleadings were filed and settled no hearing had commenced and no evidence had been taken to warrant this court making an order for dismissal. In the circumstance, the order opened to this court is one of simply striking out the case. This is because in exercising the discretion vested in this court, we have taken into consideration the subject matter and the interests of the parties affected. It is our belief and firm opinion that since the decision of this court is not subject to appeal to the Court of Appeal except on questions of fundamental rights, the striking out of the matter is more appropriate. The application for discontinuance of the matter is hereby granted and the case is struck out without cost. Ruling is entered accordingly. Hon. Justice B.A. Adejumo President Hon. Justice B.B. Kanyip Hon. Justice M.B. Dadda Judge Judge