Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: February 10, 2015 SUIT NO. NICN/CA/668/2013 BETWEEN JULIAN EBOH - CLAIMANT/RESPONDENT AND METRO GROUP LIMITED - DEFENDANT /APPLICANT REPRESENTATION John Nwosu, for the claimant. C. Kakson, for the defendant. RULING This is a motion on notice filed by the defendant/applicant dated 31st October, 2014. It is brought pursuant to Order 11 Rule 1 of the National Industrial Court Rules, 2007 and under the inherent jurisdiction of the court seeking the following prayers: 1. An order striking out this suit as presently constituted for being an abuse of court process of this Honourable Court. 2. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances. The application is supported by affidavit of 9 paragraphs deposed by one Benita Obeten a litigation clerk in and a written address. In reaction the claimant filed a 17 paragraph affidavit sworn to by Emmanual Mbido, a legal practitioner on 24th November, 2014 and a written address. Learned Counsel to the defendant raised a one issue for determination as follows: Whether this suit as presently constituted is an abuse of the process of this Honourable Court. He argued that a cursory look at the endorsement on the claimant’s writ of summons and statement of claim in Suit No. NICN/LA/637/2013 pending before Court 5 and this instant suit shows that the subject matter in both cases are the same - personal injury, negligence and want of duty of care. He submitted that the parties in both cases are the same and referred to the case of Ministry of Works v. Tomas (Nig) Ltd [2002] 2 NWLR (Pt. 752) 775 to 779 for the definition of abuse of court process. He argued that it is the law that to file two concurrent actions in the courts for same reliefs as is shown in this case is an abuse of the process of court citing the case of Morgan v. W.A.A Engineering Co. Ltd (1971) 1 NMLR 221. He urged the court to strike out this suit for being an abuse of court process. Learned Counsel for the claimant raised two issues for determination as follows: 1. Whether the High Court of Lagos State has the jurisdiction to transfer a case to this court. 2. Whether this suit as it is constituted is an abuse of court process. He submitted on issue that jurisdiction is a fundamental basis of all actions and is conferred on the Court by the Constitution or the Statutes that set it up citing Gombe v. P.W (Nig) Ltd & Ors [1990] 5 NWLR (Pt. 151) 473. He submitted that where a court acts without jurisdiction the judgment is a nullity citing the case of Pwoza v. Jang [1992] 7 NWLR (Pt. 251) 120, Ndayako v. Dantoro [2004] 13 NWLR (Pt. 889) 189. He submitted that the High Court Law of Lagos State does not confer jurisdiction on the High Court to transfer a case to this court or to any court outside the territorial jurisdiction of the state. That the transfer of Suit No. ID/1098/2008 from the High Court to this court is not valid as it is done without jurisdiction citing Akegbejo & Ors v. Ataga & Ors [1998] 1 NWLR (Pt. 534) 459, Okolo v. Union Bank of Nigeria Plc [2004] All FWLR (Pt. 197) 981. He further submitted that where the court lacks jurisdiction to determine a case the only order to make is one of striking out and not to transfer. He referred the court to the case of Tyonzughul v. A.G Benue State [2005] 5 NWLR (Pt.918) 226, Ilori v. Benson [2000] 9 NWLR (Pt.673) 570, C.G.G Nig. Ltd v. Amaewhule [2006] 3 (NWLR (Pt.967) 282 and NDIC v. CBN [2002] 7 NWLR (Pt.766) 272. He submitted that the transfer of Suit No. ID/1098/2008 from Lagos High Court to this Court was done without jurisdiction therefore, the Suit No. NICN/LA/673/ 2013 between the claimant and defendant pending in Court 5 is standing on nothing. Learned Counsel submitted that abuse of court process arises where a party uses or issues the judicial process improperly to the irritation and annoyance of his opponent, or institution of multiplicity of actions on the same subject matter against the same opponent. He submitted that institution of a fresh action when an action is pending with the same parties, same subject matter constitutes abuse of court process. He cited the cases of Ode v. Balogun [1990] 10 NWLR (Pt. 622) 214, Ministry of Works v. Tonimas (Nig) Ltd [2002] 2 NWLR (752) 775, Ali v. Albasir & Ors [2008] 3 NWLR (Pt. 1073) 94. He further submitted that an action cannot be an abuse of court process when the claimant has locus standi to institute the action and the statement of claim discloses a cause of action referring to the case of Adesokan v. Adeogorolu [1997] 3 SCNJ P.1. He stated that the claimant did not know about the transfer from the Lagos High Court and when he did, he discontinued the suit as shown in exhibit JE1-3. That a dismissal of this action will greatly prejudice the claimant who has suffered from the injury he sustained in the cause of his employment with the defendant which is threatening him with permanent disability. He submitted that if the court strikes out this suit, it would mean that there is no suit in this court by the claimant against the defendant since Suit No. NICN/LA/637/2013 has been discontinued. I have carefully considered the processes filed and the arguments of counsel for both parties. The defendant/applicant has not exhibited the originating processes in Suit No. ID/1098/2008 which was transferred to this Court from the High Court and now listed Suit No. NICN/LA/637/2013. Having not exhibited this process, there is no way the court can ascertain whether or not there is a multiplicity of suits and an abuse of the process of court. In any event, the claimant has exhibited the notice of discontinuance filed by him in Suit No. NICN/LA/637/2013 on the 13th June, 2014. This fact has not been denied by the defendant. I find that the parties listed on the Notice of Discontinuance are not the same parties in this suit. I hold that this suit is not an abuse of the process of court. The claimant has submitted that the Lagos State High Court law does not confer jurisdiction on the Court to transfer a case and as such the transfer to this Court is a nullity. By this argument, the claimant’s counsel he is asking this Court to sit on appeal over a valid order of the Lagos State High Court instead of filing an appeal against the order of transfer. This Court is a Court of co-ordinate jurisdiction with the Lagos High Court and is not empowered to sit on appeal over the decisions of the High Court. This issue, which is misconceived and entirely irrelevant to this application is one for the Court of Appeal to adjudicate upon and not this court. This motion on notice is hereby dismissed with costs of N5,000 awarded in favour of the claimant. Ruling is entered accordingly. _____________________________ Hon. Justice O.A Obaseki-Osaghae Presiding Judge