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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS 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: November 11, 2009 SUIT NO. NIC/LA/15/2009 BETWEEN 1. Engr. Femi Oinokungbe 2. Oladeinde Ogundipe 3.James Alabi - Claimants/Respondents AND 1. The Governing Council, Yaba College of Technology 2. The Rector, Yaba College of Technology - Defendants/Applicants REPRESENTATION Oludare Falana, for the claimants/respondents P. O. Jimoh Lasisi, SAN and with him are I. A. Kokumo and Bolaji Badmus, for the defendants/appl icants RULING This is a motion on notice dated 8th June 2009 brought by the defendants pursuant to Order 11 Rule 1(1) of the NIC Rules 2007 and under the inherent jurisdiction of the court seeking for the following: - 1. An order of the court dismissing and or striking out this suit on the grounds that it is incompetent and a gross abuse of the process of the court. 2. And for such order or further orders as this court may deem fit to make in the circumstance. The grounds under which this application is brought are:- 1. That the claimants have pending before the Ikeja Judicial Division of the High Court of Lagos State a suit ID/1516/2008 Engineer Femi Oinokungbe & ors v. The Rector Yaba College of Technology & 2 ors on the same subject matter before His Lordship Honourable Justice K. O. Alogba. 2. That this action now pending before this court as presently constituted amounts to an abuse of the court's process. The motion is supported by a 4-paragraphed affidavit sworn to on the 9(h June 2009 by Qluolu Ogbeyemi, a litigation clerk; and attached to it is one exhibit which is a writ of summons and statement of claim tiled in the High Court of Lagos State. The claimants filed an 11 -paragraphed counter-affidavit sworn to on the 13lh July 2009 by Olalekan Oganla, a litigation executive to which is attached one exhibit which is a notice of discontinuance filed in the High Court of Lagos State. The parties agreed that the application be heard on record and so filed and exchanged written addresses. The defendants' written address is dated 16th June 2009 while the claimants' is dated 13lh July 2009. Both parties adopted and relied on their written submissions and also argued orally. The defendants raised one issue for determination as follows:- Whether the present Suit No. NIC/LA/15/2009 constitutes an abuse of court process. The learned SAN, counsel to the defendants, submitted that the thrust of their objection to this suit is that the defendants herein are also the defendants in the suit instituted in the High Court by the claimants' as shown in its Exhibit A. That in the statement of claim pending in the High Court of Lagos, the claimants therein claimed identical reliefs as contained in the suit before this court. That the cause of action and subject matter of the two suits arise from suspension of academic activities declared on the 5th September 2008 by the Academic Staff Union of Polytechnics (ASUP) and three queries issued by the defendants to the claimants. The learned SAN submitted that since the parties, the issues, and the subject matter are substantially the same in the two suits, the action before this court constitutes an abuse of court process. He cited the case of Dumez Nig. Ltd v. UBA Plc [2007] 19 WRN 123 at 132 -134. Learned SAN also submitted that the claimants' notice of discontinuance in the High Court of Lagos is the subject matter of a ruling which has not been delivered and should, therefore, be discountenanced by this court as the claimants have not shown that the matter in the High Court has been terminated. He urged the court to dismiss or strike out this suit. In reply, learned counsel to the claimants began by drawing the attention of the court to the defendants' motion on notice in which the name Niran Jinadu appears as a claimant. He informed the court that this person is not a party to this suit and that the name of the second claimant in this suit, Oladeinde Ogundipe, was not put on the motion on notice which he alleged was deliberately done to mislead the court into thinking that the parties in both suits are the same. He adopted the issue raised for determination, by the defendants and argued that from the processes filed in this court and Exhibit A, the action in the High Court of Lagos is not between the same parties presently in this court. The claimants' counsel submitted that the suit instituted in the High Court was in a representative capacity; specifically that the six claimants in the High Court stated on the writ of summons that they sued as the executives of the Academic Staff Union of the Polytechnics Yaba College of Technology Chapter. He further submitted that branches of a union are not juristic persons and that it was this non-juristic person mat instituted the action in the Lagos High Court. He argued that the defendants in the High Court are not the same as the defendants in this court and went on to state that the Minister of Education and the Management of Yaba College of Technology are not parties in this suit neither was the 1st defendant and claimants parties in the suit at the High Court. He submitted that the suit before this court is instituted in the personal capacity of the claimants and not as union executives and that the dissimilarity in the parties takes the action from the realm of abuse. Counsel also argued that the issues and reliefs are equally not similar. That while the suit at the Lagos High Court is asking the court to determine the legality of the strike embarked upon by the union, the claimants in this present action are challenging the disciplinary action taken against them on the basis of their union activities. He contended that this dissimilarity in the parties and reliefs takes the action filed before this court away from the realm of abuse. Learned counsel submitted that the process of the court is said to be abuse when a party improperly uses same to the irritation and annoyance of his opponent, such as instituting multiplicity of actions on the same subject matter against the same opponent on the same issue simultaneously in different courts. Tie cited the cases of Ode v. Balogun [1999] 10 NWLR (Ft. 622) 214, Ogojeofor v. Ogoejiefor [2006] 3 NWLR (Pt. 996) 205 and Kotoye v. Saniki [1992| 9 NWLR (Pt. 264) 156 and urged the court to hold that this action is not an abuse of the judicial process and therefore competent. The claimants' counsel also informed the court that the claimants had discontinued the suit in the High Court and drew the court's attention to Exhibit A, which is the notice of discontinuance attached to the claimants counter affidavit. He stated that the suit at the High Court has not been fixed for hearing and is still at the pre-trial stage and went on to submit that once a notice of discontinuance is filed in respect of such a suit, then that cannot constitute an abuse of process. He urged the court to dismiss the defendants' application as it is misleading and lacking in merit. In reply on points of law, learned Senior Advocate to the defendants submitted that the pleadings in both courts are substantially the same. That the name Niran Jinadu on the motion paper is an error as he is not a party to this suit. He urged the court to strike out this suit. We have considered the arguments of both counsel in this matter, studied the claims in the two suits and carefully examined the parties in both suits. A multiplicity of suits or proceedings by the parties in respect of the same subject matter and issues whether in the court or in different courts constitutes an abuse of court process. The Supreme Court in the case of Saniki v. Kotoye [1992] 9 NWLR (Pt. 264) 156 at 188 per Karibi-Whyte, JSC explained the expression as follows: But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. Also see the case of Okafor v. A. G. Anambra State [1991] 6 NWLR (Pt. 200) 659 and Okorodudu v. Okoromadu [1977] 3 SC 21. For a case to be said to be an abuse of the process of court, it must contain all the above ingredients. In the suit before this court, the claimants are: (1) Engr Femi Omokungbe, (2) Oladeinde Ogundipe and (3) James Alabi; while the defendants are: (1) The Governing Council Yaba College of Technology and (2) The Rector Yaba College of Technology. The reliefs sought by the claimants in the complaint dated 7 ' May 2009 and the statements of facts dated 5th May 2009 are as follows: 1. A declaration that the collective decision and action by the union and its executive members on an industrial action on the 5th of September 2008 does not constitute a gross misconduct. 2. A declaration that the 3 queries issued on the same day by the defendants to the claimants amounts to victimization, high handedness, witch-hunt and a calculated attempt to suppress the union. 3. A declaration that the purported suspension of the claimants who are union members as a result of their union activities is null and void and, therefore, a nullity and of no effect whatsoever. 4. An order of court mandating the defendants to expunge the queries from the claimants file. 5. An order of court compelling the defendant to pay to the claimants all their outstanding salary arrears and other emolument which the defendant had illegally stopped for no reason whatsoever. 6. An order of perpetual injunction restraining the defendant from interfering in the claimants' duties in the college or victimizing, witch-hunting or embarking on any disciplinary action against the claimants as a result of their union activities or anything whatsoever. The claimants in the suit instituted in the High Court of Lagos are: (1) Engr. Femi Omokungbe, (2) Niran Jinadu, (3) James Alabi, (4) Oladeinde Ogundipe, (5) Abiodun Ashiru, (6) Chris igwe suing as the Executives of Academic Staff Union of Polytechnics, Yaba College of Technology Chapter; while the defendants are: (1) The Rector, Yaba College of Technology, (2) The Honourable Minister of Education, (3) The Management Yaba College of Technology. The reliefs sought on the writ of summons and statement of claim both dated 15th October 2008 are as follows: A. A declaration that the industrial action commenced on 5th September 2008 was legal and constitutional. B. A declaration that the collective decision and action by the union and its executive members does not constitute gross misconduct. C. A declaration that the 3 queries issued on the same day by the defendants to the claimants amount to victimization, high handedness, witch-hunt and a calculated attempted to suppress the union. D. An order of court mandating the defendants to fully implement the CONTIS Salary. E. An order of court mandating the defendants to expunge the queries from the claimants' files. F. An order of perpetual injunction restraining the defendants from meting out any disciplinary action against the claimants. It is clear and not in dispute that both actions emanated from the industrial action embarked upon by the academic staff union of polytechnics, Yaba College of Technology Chapter to protest alleged refusal to fully implement the Consolidated Tertiary Institutions Salary (CONTIS) Structure. It is the institution of this action when the suit in the High court is still pending that has given rise to the defendants' allegation of abuse of court process and hence this application. However, the three claimants herein have shown to us that they have filed a notice of discontinuance of the suit in the Lagos High Court, which is still at pre-trial stage and has not been fixed for hearing. Order 23 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 provides as follows: The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part of his claim. He shall thereupon pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. It is trite law that at any stage before the hearing of a case, a claimant has an unqualified right to file a notice of discontinuance of the action against the defendant. At that stage, leave of court is not required except where prescribed by the rules of court. See Dalfam Ltd v. Okaku International Ltd [2001] 15 NWLR (Pt. 735) 203 at 252. A notice of discontinuance once duly and validly filed cannot be recalled for the suit ceases to exist the moment it is effectively discontinued. See The Vessel Saint Roland v. Oshinloye [1997] 4 NWLR (Pt. 500) 387 and Dalfam Ltd v. Okaku International Ltd, supra, at 256. The defendants have not shown this court that the three claimants herein obtained any benefits or advantages in the High Court to their detriment or prejudice, which is capable of rendering the notice of discontinuance mala fide. They also have not shown that the aim of the claimants in exercising their right to institute this action is simply to irritate, harass or annoy them. We are of the view that the main thrust of this instant suit by the claimants is the allegation of victimization as a result of their trade union activities for which this court has been given exclusive jurisdiction by virtue of the provisions of section 7(l)(a), (b) and (c) of the NIC Act 2006. The claimants merely seek to assert and protect their own legal rights to participate in trade unionism without stoppage of their salaries. We are satisfied that this suit before us does not constitute an abuse of court process as the suit at the Lagos High court has been discontinued by the claimants herein. This application is hereby struck out. We make no order as to costs. Ruling is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge