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This is a motion on notice filed by the defendant on the 30th October 2013 praying for the following: 1. An Order striking out this suit for lack of jurisdiction to entertain same. IN THE ALTERNATIVE, 2. An Order setting aside the order of Transfer of Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nigerian Limited from the Federal High Court, Uyo to this Honourable Court made by the Honourable Justice J.E. Sharkaho on 5th February, 2013. And For Such Further Order or Orders as this Honourable Court may deem fit to make in the circumstances. The grounds upon which this application is brought are as follows: (a) The instant suit originated from Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nigerian Limited which was struck out at the Federal High Court, Uyo on 27th November, 2012 for want of diligent prosecution. (b) At the time Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nigerian Limited was purportedly transferred from the Federal High Court, Uyo to this Honourable Court the suit was yet to be re-listed. (c) Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nigerian Limited having not been relisted by an order of the Federal High Court, Uyo there was nothing to transfer to this Honourable Court for hearing and determination buy this Honourable Court. (d) The Purported transfer of No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. by the Federal High Court, Uyo to this Honourable Court was done without jurisdiction because the said Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. was no longer pending at the Federal High Court, Uyo same having been struck out for lack of diligent prosecution and was yet to be re-listed. (e) No Hearing Notice was issued and served on the Applicant for the hearing of the Respondent’s application for the transfer of Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. to this Honourable Court on 5th February, 2013. (f) This suit is not initiated by due process of law and therefore this Honourable Court lacks the requisite jurisdiction to entertain same. The application is supported by an affidavit of twelve (12) paragraphs deposed to by Aniedi Linus Isong litigation secretary and a written address in support of the motion. In reaction, the claimant filed an 18 paragraph counter affidavit which was sworn to by Agnes Endurance Etim litigation clerk and a written address in opposition. Responding, the defendant filed a further affidavit and a reply on point of law. Both parties adopted their respective written addresses as their arguments in support of their respective positions. Learned counsel to the defendant began by stating that the claimant/respondent instituted this suit against the defendant/applicant vide a Writ of Summons filed on 10th March, 2011 at the Federal High Court, Uyo, presided over by the Honourable Justice J.E. Shakarho. That on 31st January, 2012, the defendant/applicant filed a Notice of Preliminary Objection at the Federal High Court, Uyo, praying the Court for an Order striking out the suit on the ground, among others, that the Federal High Court by virtue of Section 251 (1) of the 1999 Constitution lacks the jurisdiction to entertain the suit in that it related to employment. On 13th November, 2012, the claimant/respondent filed a motion on notice praying the Court for an Order transferring Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. to the National Industrial Court. That upon the matter coming up on 27th November, 2012 for hearing of the pending applications neither the parties nor their respective counsel was present in Court whereupon the suit was struck out. Counsel stated that the defendant/applicant was neither served with any motion on notice by the claimant/respondent seeking the Order of the Federal High Court, Uyo, to re-list the suit nor any hearing notice in respect of the hearing of the said Motion. This notwithstanding, the Federal High Court, Uyo, heard arguments from A. E. Ebuk Esq., on behalf of the claimant/respondent and transferred Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. to this Court. He said the defendant/applicant was not served with any hearing notice in respect of the motion on notice seeking for an Order transferring Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. to this Court. Learned counsel to the defendant/applicant then submitted the following issues for determination as follows: (i) Whether this suit is competent having been transferred to this Honourable Court without first being re-listed upon being struck out for want of diligent prosecution buy the Federal High Court Uyo. (ii) Whether the failure by the Federal High Court, Uyo to order the issuance and service of hearing Notice on the Applicant before hearing arguments from the Respondent on his application to transfer the suit and the purported transfer of the suit to this Honourable court does not amount to a denial of the applicant’s fundamental right to fair hearing which renders the purported transfer of the suit null and void. (iii) Whether the Honourable Court can set aside the purported Order of Transfer made on 5th February, 2013 by the Federal High Court, Uyo, transferring Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. to this Honourable Court for determination. He submitted that where there is a statutory provision regulating the exercise of jurisdiction of a court, the court cannot act out side the limit of that provision. He referred to section 24 (3) of the national Industrial Court Act and submitted that the provision contemplates transfer of matters that are pending before the Federal High Court. He argued that once a matter is struck out it is no longer in existence and cannot be transferred. He cited Arowolo v Adesina [2011] 2 NWLR (Pt 1231)315, UAC v Ncfoy [1961] 3 AER 1169, Efet v INEC [2011] 7 NWLR (Pt 1247) 423. Learned counsel argued that the order of transfer made in Suit No. FHC/UY/CS/87/2011: Michael Akpan- V- Transocean Nig. Ltd. by the Federal High Court was done without jurisdiction because the suit had been struck out and was yet to be relisted. He referred to Order 19 and Order 26 (7)(1) of the Federal High Court (Civil Procedure) Rules 2009 and cited Saulawa v Kabir [2011] 2 NWLR (Pt 1232) 417. He submitted that the failure of the claimant to serve the motion on notice for an Order relisting the matter renders the entire suit incompetent and liable to be struck out citing Nidon Syetem Ltd Effiong {2011] 2 NWLR (Pt 1231) page 354, Ugwu v Ararume [2007] 12 NWLR (Pt 1048)Bello v INEC [2210] 8 NWLR (Pt 1196) 342. He submitted that failure of the Federal High Court Uyo to cause hearing notice to be issued to the defendant/applicant to attend court for the proceedings where the court entertained arguments and transferred the matter to this court robbed it of jurisdiction and the transfer is null and void. He submitted further that failure by the Federal High Court to issue hearing notice on the defendant/applicant amounts to an infringement of its fundamental human right to a fair hearing. He cited Okogi v Okoh [2010] 9 NWLR (Pt 1199) 311, First Bank of Nigeria v T.S.A. Industries [2010] 15 NWLR (Pt 1216) Agip Nig Ltd v Petroli International (2010) 5 NWLR (Pt 1187) 348. He submitted that this court can set aside the Order of transfer of the Federal High Court as both are Courts of co-ordinate jurisdiction citing Bello v INEC Supra. He then urged the court to set aside the order of transfer of the Federal High Court on 5th February 2013. Learned counsel to the claimant/respondent submitted one issue for determination as follows: Whether from the facts and circumstances of this case and from the processes before My Lord, the transfer of this suit from the Federal High Court to the National Industrial Court can be said to be null and void thereby robbing this court of its jurisdiction. He referred to the proceedings of the 17th January 2013 at the Federal High Court and stated that the court having heard the claimant’s application to relist the matter, accordingly relisted it before it was transferred to this Court. He referred to Order 19 Rule 1 of the Federal High Court Rules, 2009 and submitted that the claimant had complied with the Rules citing Essien v Ekanem [2010] ALL FWLR (Pt 503), Woluchem v Wokoma [1974] 3 SC 153, Saulawa v Kabir [2001] 2 NWLR (Pt 1232) 417. Learned counsel referred to Order 26 Rule 7(1) of the Federal High Court Rules and submitted that the motions to relist and transfer were served on defence counsel as contemplated by the Rules. He submitted that defence counsel having not filed any process in opposition to the application for transfer cannot complain of lack of fair hearing as fair hearing means opportunity to be heard. He submitted that this application is a smoke screen to prevent the hearing of this suit as the defendant will not in any way be prejudiced in the hearing of this action. He cited First Bank Plc v TSA Industries [2010]15 NWLR (Pt 1216) 247, Okogi v Okoh [2010] 9 NWLR (Pt 1199) 311. Okoteha v Herwa Ltd [2000] 15 NWLR (Pt 690) 249. Replying on point of law, defence counsel submitted that the transfer from the Federal High Court is null and void and robs the court of jurisdiction. Having considered the submissions of counsel and the authorities cited, the reference on this issue regarding the validity or otherwise of the transfer of this suit from the Federal High Court to this Court must be to Section 24 (3) and (4) of the National Industrial Court Act 2006 reproduced as follows: (3) Notwithstanding anything to the contrary in any enactment or law, no cause or matters shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of court for the purposes of this subsection. (4) Every order of transfer made pursuant to subsections (2) and (3) of this section shall operate as a stay of proceedings before the court which such proceedings are brought or instituted and shall not be subject to appeal. There is before me, accompanying the file from the Federal High Court Uyo Division the drawn up Order of transfer under the seal of the court and the hand of the Presiding Judge, Hon. Justice J. E. Shakarho on 5th February 2013. This is the evidence of a valid order of transfer. This is what this court is to concern itself with. The law does not give this court powers to begin to question, enquire into and review the proceedings of the Federal High Court leading to the transfer of a suit to this court. The Federal High Court is a court of co-ordinate jurisdiction. This court cannot sit on appeal over a decision of the Federal High Court. This is what counsel to the defendant/applicant is asking this court to do. In any event, folio 198 of the records shows that the motion for relisting was fixed for 17/01/13 by my learned brother Hon. Justice J. E. Shakarho and the case was called on that day as borne out by his notes. I hold that this suit has been validly transferred from the Federal High Court to this court for determination. This court is not deprived of jurisdiction to entertain and determine this matter. I find this motion to be a time wasting exercise which lacks merit. It is hereby dismissed. The matter is to proceed to hearing. Costs of N5,000.00 is awarded in favour of the claimant. Ruling is entered accordingly. --------------------------------------- Hon. Justice O.A.Obaseki-Osaghae.