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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: September 23, 2014 SUIT NO. NICN/OW/09/2014 Between Mrs. Marcellina C. Ukachukwu - Claimant And Oru East Local Government - Defendant Representation: P. C. Obinatu for the Claimant RULING By a complaint dated the 13th day of January 2014 and filed on the 22nd day of January 2014, the claimant seeks the following reliefs against the defendant. 1. A declaration of the honourable court that the Claimant’s contract of employment with the defendant is still valid and subsisting, same having not been legally terminated by the defendant. 2. A declaration of the honourable court that the termination of further salary payments to the Claimant and the subsequent removal of her name from the payment vouchers by the defendant without according her a right of audience are unlawful and grievously violates her fundamental right to fair hearing. 3. An order of this honourable court reinstating the Claimant’s name in the defendant’s payment vouchers. 4. An order of this honourable court directing the Defendant to pay the Claimant forthwith, the sum of N1,036,000.00 (One Million and Thirty Six Thousand Naira) being accumulated arrears of salaries from April 2008 to January 2014. 5. An order of this honourable court directing the Defendant to pay to the Claimant the sum of N1,000,000.00 compensation for unlawful termination of her salaries payments. 6. Perpetual Injunction restraining the Defendant either by themselves or by their agents or proxies or representatives from further termination of the salaries payments to the Claimant. The Complaint was accompanied with Statement of Claim, Claimant’s written statement on oath, List of witnesses, List of documents and copies of documents to be relied upon by the Claimant. These were served on the defendant and duly acknowledged. The defendant has not filed any appearance or any defence process. By a motion on notice dated the 30th day of April 2014 and filed on the 2nd day of May 2014, and brought pursuant to Order 8 Rule 5(1), Order 10 Rule 1, Order 11 Rules 1 and 2 of the National Industrial Court Rules 2007 and the Inherent powers of the court, the Claimant/Applicant sought an order of this court entering summary judgment in favour of the Claimant/Applicant in terms of the Claimant’s Complaint, Statement on oath and other accompanying processes in the suit. The motion is supported by a 14 paragraph affidavit and a written address wherein counsel raised a lone issue for determination: “Whether the Claimant is entitled to have summary judgment entered in her favour in default of the Defendant entering appearance and/or filing any defence to the suit.” It is Counsel’s submission that where a defendant fails to enter appearance or file a defence to the suit within the time limited by the rules of court, the Claimant is entitled as in the instant case to have judgment entered in her favour. He cited the case of Egbarin vs. Aghoghovbia (2003) 16 NWLR (Pt. 846) 380 at 395-6 and submitted that in determining the right of parties in an action where a defendant has filed no defence, the statement of claim alone is to be looked at. He stated that it should be taken that the facts therein are admitted by the defendant. He referred to paragraphs 5, 6, 7, 8, 9 and 10 of the Claimant’s supporting affidavit and Order 8 Rule 5(1) and Order 10 Rule 1 of the NIC Rules 2007. Counsel then urged the court to enter judgment in favour of the Claimant. In determining this application, there is need to first set out the provisions of the rules of this court relevant to the issue as formulated by the applicant. Order 8 Rule 5 (1) provides- “Where a defendant or respondent fails to file a memorandum of appearance within time stipulated or fails to file appropriate process 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” Order 10 Rule 1 provides- “Where a claimant believes there is no defence to the claim, an application for summary judgment supported with an affidavit stating the grounds for the belief, shall be filed along with the originating process. The application shall be accompanied with the statement of facts, any exhibits and a written brief”. Order 19 Rule 2 provides- “Where a cause is called for hearing and the claimant appears but the defendant or respondent and/or counsel do not and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her.” This suit is one commenced with a Compliant simpliciter and not under the summary judgment proceeding. By Order 10, Rule 1 of the Rules, a claimant commencing action in summary judgment is expected to commence the proceedings by filing the Complaint together with the application for summary judgment. The complaint in this suit was not filed with intent to be a summary judgment proceeding. The motion for summary judgment was not filed with it. The complaint was filed on 22nd January 2014 and later on 2nd May 2014 the claimant filed this motion. By this application, it appears the claimant is seeking to convert the proceeding to one under summary judgment. It is trite law that where a law or practice procedure prescribes a mode of commencing a particular proceeding, it would be wrong for a litigant to seek to adopt a different approach to it. The claimant has deposed in his affidavit in support of the application that this suit was instituted since 22nd January 2014 and the defendant has failed to neither enter appearance nor file a defence to the suit since it was served the processes in March 2014. It is deposed that the time allowed the defendant to file its processes has elapsed and the suit has remained undefended which gave the claimant reason to believe the defendant has no defence to the suit, hence this application for the court to enter summary judgment. The procedure for summary judgment is very clear in Order 10 Rule 1. The claimant not having filed this application together with the originating processes means that the suit is not one for summary judgment. The reason for bringing this application, as disclosed in the affidavit in support, is simply that the defendant has not entered appearance nor filed any process in defence of the suit. It is this type of situation that is contemplated in Order 8 Rule 5 (1) and Order 19 Rule 2 of the rules of this court. In such situation where a defendant fails to file a memorandum of appearance or fails to file any process in defence of the action and the matter is for hearing, the court is to proceed to hear the matter and give judgment accordingly. My record shows that before this application was filed, this case was ready for hearing. On 31st March 2014, the claimant and her counsel were in court but the defendant was absent and was not represented. The claimant’s counsel applied that the case be fixed for hearing and this court so ordered and adjourned the case to 7th May 2014 for hearing. I was indisposed on the return date as a result of which this court did not sit. The registry of the court fixed the case for 4th June 2014 for hearing. In the interval, the claimant filed the present application. Order 19, Rule 2 is clear as to what is to be done when a matter is for hearing and the defendant did not appear. The claimant is expected to proceed to call evidence to prove her case. The combined effect of the rules of this court which I have referred to in this ruling is that this application does not have merit and it cannot be granted. The application is hereby dismissed. Consequently, this case will proceed to hearing. The Claimant will proceed to open her case and prove her claims as per the complaint. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge