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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: NOVEMBER 13, 2014 SUIT NO. NICN/LA/346/2013 BETWEEN Jatto Sylvester Ibhaze (Otherwise known as Jatto Sylvester) - Claimant AND I.H.S. Nigeria Plc - Defendant REPRESENTATION Gabriel Akhigbe, for the claimant. Victor Gwam, and with him is O. Achika, for the defendant. RULING The claimant by a complaint dated and filed on 3rd July 2013 is claiming against the defendant for the following reliefs – 1. A declaration that the dismissal from the defendant’s service on 14/12/2009 is unlawful and/or invalid. 2. An order that the claimant is entitled to be paid his accrued allowances N50,000.00 salary in lieu of one month’s notice making a total of N207,672 as special damages. 3. N5 Million general damages for libel of the claimant contained in the defendant’s letter to the claimant dated 14th December 2009 in which he was libeled a thief and published by the defendant to employees of the defendant. Accompanying the complaint are the statement of claim, statement on oath of the claimant, list of witnesses, list of documents, notice to produce and copies of the frontloaded documents. At the Court’s first sitting of 20th September 2013, the Court had noted that relief 3 prayed for by the claimant relates to libel thus giving rise to the question whether the Court has jurisdiction over it in view of the fact that defamation (libel and slander) is sui generis and can found an action in its own right. Parties were then asked to address the Court on the issue. Without formally entering appearance or filing its defence processes, the defendant on 26th November 2013 filed a preliminary objection dated 25th November 2013; and praying for – 1. An order dismissing this suit in its entirety for being an abuse of court process. 2. And for such or other further orders as this Honourable Court may deem fit to make in the circumstances. The grounds of the objection are – a) There is a pending suit on this same subject matter and between same parties in the High Court of Lagos State. b) The claimant instituted this suit without discontinuing the matter at the High Court Lagos State. In support of the objection are an affidavit in support, written address and copies of the court processes at the Lagos State High Court. The claimant reacted to the preliminary objection by filing a counter-affidavit and a written address. The defendant did not file any reply on points of law. The case of the defendants is that the claimant commenced an action against the defendant at the High Court of Lagos State in Suit No. LD/1561/2010 praying for among other reliefs for a declaration that his dismissal was invalid and for payment of accrued salary and allowances. That during the pendency of the said suit, the claimant commenced this suit in this Court on 3rd July 2013 against the defendant on same facts and with the same claims. That presently, the defendant is forced to respond to two similar suits in different courts with different jurisdiction commenced by the same claimant. The defendant then framed one issue for the determination of the Court namely: whether this present suit as it is constituted is an abuse of court process and should be dismissed. The defendant then contended that the suit is an abuse of court process on the ground that a similar case is ongoing at the High Court of Lagos State in Suit No. LD/1561/2010 and has been reassigned from the Court of Hon. Justice Okwuobi to Hon. Justice Alogba. To the defendant, the Courts have held that it is an abuse of process to institute multiplicity of actions between the same parties over the same subject matter in different courts, citing NIMB Ltd v. UBN Ltd [2004] 12 NWLR (Pt. 888) 599 SC and R. Benkay (Nig) Ltd v. Cadbury (Nig) Ltd Plc [2006] 6 NWLR (Pt. 976) 338 CA. The defendant went on that the Courts have also held that it does not matter if the plaintiff had filed an application to discontinue the other pending suit, when the motion challenging the competence of the action is moved because it an abuse of judicial process for a plaintiff to file a notice of discontinuance so he may have his way in the new suit, citing Usman v. Buba [2005] 5 NWLR (Pt. 917) 113 CA. And that once a matter is improperly before the Court, the matter should be dismissed, referring to NIWA v. STB Plc [2008] 2 NWLR (Pt. 1072) 483. The defendant then urged the Court to dismiss the case as an abuse of court process. The case of the claimant is that in August 2010, he filed a writ of summons against the defendant at the High Court of Lagos State; and the Court had the jurisdiction to hear the suit. However, in March 2011, the High Court ceased to have jurisdiction because of the passage of the Third Alteration to the 1999 Constitution. Aware that the High Court had ceased to have jurisdiction, the High Court which ought to have transferred the suit to this Court did not do so. That it was the fault of the defendant who stopped to attend Court on the adjourned dates after he had filed a notice of preliminary objection challenging the jurisdiction of the High Court on 9/10/2012. That to avoid the statutory limitation period running against him, he filed the same action in this Court. He filed a motion at the High Court seeking for an order to transfer the High Court suit to the Registrar, National Industrial Court (NIC). That the motion has been adjourned for hearing on 3/12/2013. The claimant then framed one issue for the determination of the Court, namely: whether there is an abuse of court process to the annoyance of the defendant entitling the Court to dismiss this suit. In argument, the claimant relied “on his counter-affidavit in the High Court of Lagos had jurisdiction to determine this suit when it was filed in August 2010”. That circumstances beyond the control of the claimant arose. The Third Alteration to the 1999 Constitution was passed which removed the jurisdiction of the High Court regarding labour matters and gave it to this Court. That the defendant filed a preliminary objection as to the jurisdiction of the High Court on 9/10/2012 on coming into effect of the Third Alteration to the 1999 Constitution, which preliminary objection is still pending at the High Court. That the defendant has not withdrawn the preliminary objection and it has not been attending Court on the adjourned dates to move its preliminary objection. That if it has been attending Court the suit would have been struck out or transferred to this Court. Meanwhile, that the claimant filed a motion at the High Court to be argued together with the preliminary objection. That the suit was adjourned to 3/12/2013 for the two motions to be heard. To the claimant, whichever way the ruling of the High Court goes, there will be only one action at the end of day. If the High Court strikes out the suit, then the instant suit will remain. If it is transferred to this Court, then the instant case will automatically be withdrawn. The claimant continued that the defendant seeks the dismissal of the instant suit and the striking out of the suit before the High Court as per Exhibit G of the counter-affidavit. That this Court being a Court of justice and equity may in its absolute discretion await the outcome of the defendant’s preliminary objection in the High Court and the claimant’s motion for transfer of the High Court suit to this Court. That both motions are before the same Judge. That the defendant cannot approbate and reprobate at the same time. That the Court will not dismiss a suit which has not been heard on its merits except in a case where res judicata has been made out or in cases where there is no cause of action. It is the further submission of the claimant that the action in this Court is not concurrent with the one at the High Court as they are not in the same Court, citing Cedar Stationery Products Ltd. v. IBWA [2000] FWLR (Pt. 25) 1710 at 1724. To the claimant, therefore, there is no abuse of court process unless and until the pending motions in the High Court are disposed of. I indicated that the defendant did not file any reply on points of law. I must also state at this juncture that none of the parties addressed the Court on the issue raised suo motu by the Court i.e. whether it has jurisdiction over relief 3, the claim for libel. Since the parties decided not to address the issue I shall not accordingly be considering that issue in this ruling. The sole issue, therefore, for the determination of the Court is whether the instant suit is an abuse of court process on the basis of multiplicity of suits. There is no argument on the part of the claimant that a case he filed in 2010 at the Lagos state High Court (Suit No. LD/1561/2010) is still pending. The claimant is also not challenging the fact that both suits are between the same parties and deal with the same claims. The argument of the claimant (other than the plea to emotions and sentiments) is simply that he did not want to take the risk of being caught up by the limitation if he were to await an adverse ruling from the High Court that would deny him the request to transfer that case to this Court. In Alhaji Lateef Akinsola v. NURTW & ors [2013] 33 NLLR (Pt. 96) 399 NIC, this Court, referring to Pavex International Co. Ltd v. IBWA [1994] 5 NWLR (Pt. 347) 685, Okorodudu v. Okoromadu [1977] 3 SC 21 at 32, COP v. Fasehun [1997] 6 NWLR (Pt. 507) 180 – 181 and Chief Ohwovwioghor Ikine v. Chief Olori Edjerode [2001] SC 43, indicated that the law is that multiplicity of actions which involve the same parties and the same subject matter amount to abuse of court process and a court is duty bound to stop such abuse. And by Chief Victor Umeh & anor v. Prof. Maurice Iwu (Chairman INEC) & 3 ors [2008] 2 – 3 SC (Pt. I) 135, it is settled law that for there to be an abuse of court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which pre-conditions are mutually inclusive as they are conjunctive. Furthermore, it is an abuse of the judicial process for a plaintiff to file a notice of discontinuance so that he may have his way in a new suit. See Olawore v. Olanrewaju [1998] 1 NWLR (Pt. 534) 436 at 455. The authorities go on to state that a trial court has jurisdiction to strike out a matter with an order barring the applicant from instituting the same action where, for instance, an enabling statute or law so specifically provides or when the matter being struck out is an abuse of judicial process. See Registered Trustees of Ifeloju v. Kuku [1991] 5 NWLR (Pt. 189) 65. In order to determine whether an abuse of the judicial process has occurred, Agwasim v. Ojichie [2004] 10 NWLR (Pt. 882) 613 laid down that the Court is expected to consider the content of the first process vis-à-vis the second to see whether they are aimed at achieving the same purpose. By Ntuks & ors v. Nigerian Ports Authority [2007] 5 – 6 SC 1, abuse of court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing any harm to the matter in dispute. All of these ingredients of multiplicity of suits and hence an abuse of court process are evident in the instant case; and in all the authorities, no allowance has been made for the kind of emotions that the claimant appealed to. Even when the claimant argued that his case is not concurrent with the one in the High Court and then referred to Cedar Stationery Products Ltd. v. IBWA [2000] FWLR (Pt. 25) 1710 at 1724 where the Court of Appeal stated that it is prima facie vexatious and oppressive to initiate two concurrent proceedings asking for virtually the same relief in the same Court, the claimant forgot that the Court of Appeal did not thereby say that two similar actions in different Courts cannot be concurrent and hence an abuse of court process. The Court of Appeal simply opined as regards two concurrent proceedings in the same Court. This case is certainly not an authority for the proposition that only concurrent proceedings in the same Court can amount to multiplicity of suits and hence amount to abuse of court process. It is my finding therefore that the instant suit and Suit No. LD/1561/2010 are between the same parties and involve same claims. The instant suit accordingly suffers the charge of multiplicity of suits together with Suit No. LD/1561/2010. The claimant in the instant suit is accordingly guilty of the charge of multiplicity of suits. Having, therefore, found that the claimant is guilty of multiplicity of suits, on the authority of Registered Trustees of Ifeloju v. Kuku [1991] 5 NWLR (Pt. 189) 65, the instant case is liable to be struck on the ground of abuse of court process. The case is accordingly struck out. . Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip