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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT LAGOS Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge ………………………….th June, 2014 SUIT NO: NICN/LA/243/2013 Between: Emmanuel Fagbamila Claimant AND University of Lagos Defendant REPRESENTATION RULING By a Notice of Preliminary Objection (NPO) dated 23rd July 2013 and filed the same date the defendant sought for an order of this court dismissing this suit for lack of jurisdiction. The ground for the application is as follows: The claimants suit is statute barred by virtue of section 2(a) of the Public Officers Protection Act Laws of the Federation of Nigeria 2004(Cap P 14) The application is supported by an 11 paragraph affidavit, two exhibits and a written address of 7 pages wherein counsel to the defendant/applicant raise a lone issue for determination as follows: Whether the suit of the claimant is not statute barred under and by virtue of section 2(a) of the Public Officers Protection Act Cap P14 Laws of the Federation of Nigeria 2004? In answering this question submitted for determination by the court, Mr Ayodeji Awobiyide counsel to the defendant/applicant drew the courts attention to the principles in Madukolu Vs Nkedilim (1962) 2 SC NLR 341 to the effect that where a court has no jurisdiction to entertain any claim, anything done in respect of the claim will be an exercise in futility. Counsel listed the pre conditions as: (1). Proper parties must be before the court (2). Subject matter must be within the court competence (3). Qualifications and composition of members of the court must be appropriate and (4). The suit must be commenced by due process upon the fulfillment of any condition precedent Counsel contended that jurisdiction is determine by looking at the writ of summons and the statement of claim. Counsel called in aid the cases of RTEA Vs NURTW (1996) 8 NWLR (Pt.469) 737 at 743; Abdulraheem Vs Oloruntoba-Oju 2006 15 NWLR (Pt. 1003) 581 at 624; Adeleke Vs OSHA 2006 16 NWLR (Pt. 1006) 608 at 714 Counsel referred the court to paragraphs 16, 17, 18, and 19 of the claimants statement of claim and submitted that the date of accrual of right of action should be calculated from the date of interdiction or the date of delivery of judgment in a criminal charge against the claimant by the Yaba Magistrate court. Counsel posited further that the action of the claimant which was brought after the stipulated three months as provided by the laws under consideration is clearly statute barred and should be dismissed. Counsel relied on the cases of Ibrahim Vs. JSC Kaduna State 1998 14 NWLR (Pt. 584) 1 at 31-32 CBN Vs. Adedeji 2004 13 NWLR Pt. 890 P. 226 at 245. It is the further submission of counsel that “any person” within the context and meaning of the Public Officers Protection Act LFN (Cap p14) 2004 means both the natural and artificial person and as such the defendant being an artificial person is covered or has the right to take protection under the act. Counsel contended that since the right of action, calculated from the date of accrual has been caught up by the limitation period of three months, the court has no jurisdiction to entertain this suit as the period of time laid down by the limitation law for instituting such an action has elapsed. Counsel cited the cases of Woherem Vs. Emeruwa (2004) 13 NWLR (Pt. 890) 398 at 415; Emiator Vs. Nigerian Army 1999 12 NWLR (Pt. 631) 362 at 372 UBN Ltd Vs. Oki (1999) 8 NWLR (Pt. 614) 244 at 252. Counsel finally urged the court to dismiss the suit of the claimant. In his reaction to the defendants/applicants Notice of Preliminary Objection, the claimant respondent filed an 11 paragraphs counter affidavit, five exhibit and a written address of nine pages wherein the respondent raised a lone issue for determination which is: Whether in the circumstances of this case, the cause of action of the claimant is statute barred? As a preliminary issue, the respondent counsel Mr. Olawale Ijabiken contended that the objection of the applicant is an abuse of the process of the court as the applicant is supposed to raise such objection in his statement of defence before applying to the court to set such objection for trial. Counsel contented that since the applicant has demurred, the Notice of Preliminary Objection (NPO) should be struck out as demurrer proceedings has long been abolished in our adjudicatory system. Counsel submitted further that in trying to determine the question for determination raised in his address, the court should look directly into all material facts pleaded by the claimant for his claim to survive. Counsel drew the attention of the court to the Supreme Court decision in the cases of Elabanjo Vs. Dawodu 2006 5 WRN 79 at 156; R N Uddoh Vs. Abere 2001 24 WRN I at 17; Dada Vs. Aina 2008 37 WRN 110 where the meaning of cause of action was stated to mean the combination of the circumstances giving rise to a remedy. Counsel referred the court to paragraphs 16, 17, 18, 19, 22, 23 and 24 of the statement of claim of the respondent and paragraph 5 of the counter affidavit including exhibits Jou 1-3 of the claimant to show that the grievances of the claimant never matured until 15th April 2013 being the date the objector caused a letter denying all liabilities and responsibilities towards the respondent to be written or issued to the claimant. Counsel further urged the court to look at the claimants claim or reliefs being sought including the material facts averred in the pleadings holistically. Counsel cited the case of Ansa Vs. Etim 2010 11 WRN 145 at 155; Military Administrator, Ekiti State Vs. Aladeyelu 2007 40 WRN 158; Furthermore it is the contention of counsel that, by virtue of section 210 (1) and (2) of the 1999 Constitution of Nigeria as amended, the Public Officer Protection Act Cap P14 LFN 2004 is not applicable to this instant case bordering on payment on claims relating to terminal benefits, retirement benefits, pension and gratuity as the Public Officers Protection Law is in conflict with the constitution of Nigeria; Counsel called an aid, the case of Popoola Vs. AG. Kwara State 2012 17 WRN 33 at 54. Counsel finally urged the court to discountenance the objection and dismiss same. I have read and painstakingly considered the Notice of Preliminary Objection of the defendant, the various exhibits, the counter affidavit and the written submission as contained in the written address of the respective counsel. It is on record that when this application came up for adoption of counsel written addresses on the 2nd of April 2014, parties were absent from court as well as their counsel without any reason despite the service of hearing notices. Consequently the written addresses of the counsel were deemed adopted by the court after the motion dated the 31st of March 2014 seeking to regularise further affidavit and reply on point of law was struck out; In an application of this nature, the appellate court has not left us in the dark as to the applicable principles; The central issue in the Notice of Preliminary Objection before the court is the jurisdiction or otherwise of this court to entertain this suit. Jurisdiction of court to entertain a suit is based on the claimants averments in the statement of claim and the reliefs sought therein. See the case of Osoh Vs. Unity Bank Plc 2013 9 NWLR Pt. 1358 SC I. It is the claim in any particular case that determines the court in which jurisdiction is vested. In order words, it is the claimants reliefs or prayers that cloth the court or denies the jurisdiction to adjudicate on a matter before it. Whatever is brought before a trial court by the claimant for determination alone will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all. See the case of P & C.H.S Co. Ltd Vs. Migfo Nigeria Ltd 2013 3 NWLR Pt. 1333 at 555. This means in essence that in determining whether the claimants cause of action is within the jurisdictional competence of the court, the said court has to limit itself to the statement of claim and writ of summons. The inquiry to me, does not extend to the defendants pleadings even though same had been filed in compliance with the rules of court. The Supreme Court of Nigeria recently in March 2014 has added a detailed dimension to this principle of law when it says in the case of Society Bic S.A. Vs. Chargin Ind. Ltd 2014 4 NWLR (Pt. 1398) 497 “In determining the issue of jurisdiction it is the claim endorsed on the writ or stated in the statement of claim that will be considered, not the facts averred in the statement of claim or the affidavit evidence to be relied on by the plaintiff. It is a misconception to refer to facts pleaded in the statement of claim or averment in affidavit as component of the cause of action to be relied on in ascertaining the jurisdiction of the court” It should also be noted that the statute setting up the court also spell out the jurisdiction of the court. In the case of the National Industrial Court of Nigeria, it is the National Industrial Court Act, 2006, the third alteration to the 1999 constitution of the Federal Republic of Nigeria (FRN) and other subsidiary legislation. Against that background and from the available originating processes coupled with the applicable law, I hereby proceed to formulate a sole issue for determination as follows: “Given the state of reliefs of the claimant and the applicable law, is this suit caught up by the Public Officers Protection Act?” Before looking at the reliefs of the claimant what does the Public Officers Protection Act say? Section 2 (a) of the Public Officers Protection Act POPA LFN cap P14 2004 has this to say:- “where any action, prosecution or other proceedings is commenced against any person on any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority or in respect of any alleged neglect of default in the execution of any such Act, Law duty or authority, the following provisions shall have effect. The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default or complained of or in case of a continuance of damage or injury within three months next after the ceasing thereof …” In the case of Udoh Vs CSC Akwa Ibom State and other 2006 LPELR 11564 it was held that for section 2(a) of the Public Officers Protection Act(POPA) to avail any person, two conditions must be satisfied namely:- (a) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of the Law. (b) The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of any alleged neglect or default in the execution of such law, duty or authority. See also the case of Ekeogu Vs. Aliri 1990 NWLR (Pt. 126) 345 The question to be further determine is whether the defendant, the University of Lagos is a public officer performing public duties. In the case of Nwaogwugwu Vs. President of the FRN 2007 All FWLR Pt. 389 1327 at 1358 and Ibrahim Vs. JSC of Kaduna State (Supra), the Supreme Court of Nigeria held that the word “any person” in section 2 (a) of the Public Officers Protection Act is not limited to human beings or to persons sued in their personal names but also included artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons. The 1999 constitution of the Federal Republic of Nigeria (FRN) as (amended) has at section 318 define public service of the Federation and public service of the state. However, in the fifth schedule, part I paragraph 19 of the said constitution, public officer is defined as a person holding any office as specified in part II of that Schedule. A careful look at this fifth schedule part II of the 1999 constitution of Nigeria reveals that the defendant is contemplated under paragraph 9 of the schedule under consideration. Consequently I hold that the defendant is a public officer within the ambit of the term public officer as contemplated under the Public Officers Protection Act. The claimant counsel Mr. Wale Ijabiken, as a preliminary issue, canvassed strenuously that the defendant/applicant notice of preliminary objection is incompetent on the ground that it has not raised the objection specifically from his statement of defence as demurrer has been abolished. I find it extremely difficult to agree with this submission. There is no portion of the rules of this court known to me where a party must raise issue borering on objections to court jurisdiction in his defence before applying to the court to set it down for trial. It must be noted that in some jurisdictions of this country, the limitation laws are required as per the High court civil procedure rules to be pleaded by the defence in order not to take the opponent by Surprise although it may arise from the facts as pleaded without specifically alleging the relevant limitation law. In that case, pleadings have to be filed and exchanged by the parties before an objection to the action being stale and statute barred can properly be taken. This invariably is the case were demurrer has been abolished. And the rules in that case require the defendant to set down for hearing the matter by an application raising specifically the question of limitation of action and the lack of the courts power to entertain the same. The court then is required to determine that set down point in limine. Since there is no such requirement of raising such limitation law in the defendants defence in the National Industrial Court Rules before raising it is the Notice of Preliminary Objection, the defendant is allowed to demur and I so hold. See the case of Sulgrave Holdings Inc. & Others Vs Federal Government of Nigeria (FGN) & Others 2012 17 NWLR (Pt.1329) 309 at 339. (G –H) Now, let me consider the claims and reliefs of the claimant as contained in his writ and particulars of claim. The claimant/respondent claims as follows (a) A declaration that the claimant herein was prior to the 1st April 2010 in the employment of the defendant. (b) A declaration that the purported interdiction placed on the claimant by the defendant was illegal, wrongful, null and void. (c) A declaration that the claimant is entitled to all unpaid remunerations from January 2008 to April 2010 amounting to N 8,681,918.00 (Eight Million, Six Hundred and Eighty One Thousand, Nine Hundred and Eighteen Naira) only to the claimant. (d) An order directing the defendant to issue to the claimant all the pay slips of all salaries paid to him from January 2008 till April 2010 and final clearance letter to the last salary paid to claimant for April 2010 when he retired from the employment of the defendant. (e) The sum of N20, 000,000 (Twenty Million Naira) only as general damages for anguish, ridicule and emotional stress suffered in lieu of the treatment meted out to the claimant by the defendant and/or its privies and assigns. (f) Solicitors fee in this action. From the claim and reliefs being sought by the claimant in this suit, it can be categories under the following ambit: (1) Declaration of status as at 1st April 2010 when the claimant retired from the services of the defendant. (2) Declaration relating to claimants interdiction or suspension as contained in a letter of 2nd March 2009. (3) Claims bordering on unpaid salaries including the period of interdiction and matters incidental thereto (4) Other ancillary sundry reliefs on damages and solicitors fees. The defendant/ applicant had contended vehemently that the cause of action in this suit arose or accrued either on 2nd March 2009 when the claimant was interdicted by the defendant or on the 31st of October 2011 when the criminal charged proferred against him was determined in his favour at the Yaba magistrate court. It is the further contention of the defendant /applicant that respondent is caught up by the 3 months statutory limit set up by the public officers laws in question. This type of situation have been settled by our court. It is trite law that staff who is on suspension or interdiction is still an employee. See the cases of Longe Vs. FBN; University of Lagos Vs. Olaniyan 1985 2 NWLR (Pt 9) 599. The claimant is seeking for a declaration of status as at 1st April 2010 when he retired to determine his other claims of salaries for work and labour done. Any claim for work and labour done is outside the application of the Public Officers Protection Act. See the case of Zebra energy Vs. FGN. A claim for work and labour done is an exception to the application of Public Officers Protection Act. (POPA). Cap P 14 LFN 2004. In the recent case of AG. Rivers State Vs. AG. Bayelsa State 2013 3 NWLR (Pt. 1340) 123, it was held that any claim bordering on continuous injury creates an exception to the application of the Public Officers Protection Act as long as the salary benefits, allowances or emolument of an employee remains unpaid from month to month, a new cause of action is being created on each month if such monies, are not paid and as such it cannot be statute barred. In fact under section 254 (c) (1) (f) of the 1999 constitution of Nigeria as amended it is an unfair labour matter which the court cannot with the waive of the hand terminate in limine without inquiring into. As Suleiman Galadima JSC said in AG Rivers Vs. AG. Bayelsa (Supra), the court must provide an avenue for ventilation of grievances. By calling on evidence. Whether the claimant will fail or succeed, is a different issue altogether. Consequently since the court at this stage cannot go into the averments in pleadings or affidavit but only concentrate on the reliefs as contained in the writ and statement of facts I hold that the claimants claim is not statute barred by the provision of the Public Officer Protection Act Cap P 14 LFN 2004. The defendants application is therefore dismissed and I make no order as to cost. ----------------------------- Hon. Justice P.O Lifu JP. Judge IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT LAGOS Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge ………………………….th June, 2014 SUIT NO: NICN/LA/243/2013 Between: Emmanuel Fagbamila Claimant AND University of Lagos Defendant REPRESENTATION RULING By a motion on Notice dated and filed on the 27th of May 2014, the defendant counsel, Mr. Ayodeji Awobiyide prayed the court for the following orders (1) An order of this Honourable Court arresting/suspending the delivery of Ruling on defendant/applicant’s notice of preliminary objection dated 23rd July 2013 pending the hearing of this application (2) An order of this Honourable Court setting aside the proceedings of this Honourable Court conducted in this suit on Tuesday 1st April 2014. (3) An order of this Honourable Court transferring this suit to the Chief Judge of the National Industrial Court for re-assignment to another Judge of the National Industrial Court Lagos Judicial Division. The application is predicated on section 36(6) of the constitution of the Federal Republic of Nigeria 1999 as amended; order 11 rule (1) of the Rules of this Court under the inherent jurisdiction of this court. The defendant counsel grounded his application on 15 issues, supported by 6 paragraphs affidavit and an exhibit which was the hearing notice issued by this court against the 2nd of April 2014 but received by the defendants counsel on the 18th of March 2014 by 11:50am. In the written address in support of the motion, the defendant counsel, Awobiyide Esq. formulated a sole issue for determination which is “whether or not this Honourable Court should grant this application.” In his argument, counsel submitted that jurisdiction, being a life wire of adjudication is fundamental and as such any proceeding conducted in the absence of one, is nullity, no matter how beautifully conducted. Counsel supported this argument with the cases of: (a) A.G Fed Vs Guardian Newspapers (1999) 9 NWLR Pt. 618 187 at 233 Para. D. (b) Ohai Vs Akpoemonye (1999) 1 NWLR Pt. 588 521 at 530 Para E. (c) Ukatta Vs Ndinaeze 1997 4 NWRL Pt. 499 251 at 276 Para G. Counsel submitted further that the act of confusing dates or ambiguous dates which was a mistake of the registry should not be visited on the litigants by the court as the court proceeded to hear the Notice of Preliminary Objection (NPO) suo motu in the absence of the parties and their counsel. Counsel contended further that where there is a mistake from the registry as in this suit as regards the hearing notice date, such mistake ought to be resolved in favour of the litigants and their counsel. Counsel call in aid the following authorities. (a) C & C Ltd Vs Altimate Inv. Ltd 2004 2 NWLR Pt. 857 P.274 at 295 Para G-H (b) Iyizoba Vs Olanipekun 1979 2 FRN 130, 132-133 (c) Alawode Vs Semoh 1959 SCNLR 91 Counsel contended also that the defendant right to fair hearing was breached by the court when the court conducted proceedings in this case on Tuesday 1st April 2014 in the absence of parties and their counsel in disregard of the defendant’s motion for extension of time and further affidavit dated 31st March 2014 by proceeding to adopt the counsel written addresses on the Notice of Preliminary Objection(NPO). Consequently, counsel urged the court to set aside the proceedings so conduct for being in breach of fair hearing principle. Counsel relied on the following cases for his submission; (a) Wappah Vs. Mourah 2006 18 NWLR Pt. 1010 page 18 at 48 para B-D. (b) Abwla Vs. FRN 1995 7 NWLR Pt. 405 I at 23 para D (c) C & C Ltd Vs. Altimate Inv. Ltd 2004 2 NWLR Pt. 857 P. 274 at 295 para F. (d) Duba Vs. Saleh 1997 2 NWLR Pt. 488 P. 508 para E. Counsel finally submitted and concluded that in view of the breach of the defendants right to fair hearing by this court, this suit should be transferred to the chief judge of the National Industrial Court for re-assignment to another judge of the Lagos Division of the court for hearing. The claimant counsel Mr. J.O. Ottute did not oppose the application of the defendant counsel. I have carefully perused and considered the submissions as contained in the motion dated and filed on the 27th of May 2014. Before I consider the merit or otherwise of this application, a brief history or antecedent or facts leading to this motion under consideration will be appreciated. On the 27th of February 2014 when the court sat in respect of this suit, both counsel agreed to a new date of Tuesday 25th March 2014 for adoption of counsel written addresses on the Notice of Preliminary Objection filed by the defendant. On the 25th of March 2014, this court could not sit due to the official engagement in Abuja Division of the court; consequently a hearing notice was issued to all parties in this suit against the 2nd of April 2014 for the adoption of counsel written addresses on the Notice of preliminary Objection (NPO) on this 2nd of April 2014 both counsel in this matter who were duely served with the hearing notice on the 18th of March, 2014, even before the original date of 25th March 2014 did not attend court and no reason was advanced to excuse their absence neither was the court afforded any courtesy of a letter. When this matter was called on the 2nd of April 2014, and no counsel appeared, the written addresses duely filed and exchanged by the respective counsel was adopted by the court and the ruling adjourned to the 28th of May 2014; on this 28th of May 2014, the defendant counsel brought this motion under consideration to arrest the ruling, set aside the proceedings leading to the ruling to be delivered and ordering transfer of the entire suit to the chief judge of the court for onward re-assignment to another judge of the court in Lagos Division. In an application of this nature, the critical question to be determine is; under what circumstance can the prayers of the defendant be granted On the issues of arrest of ruling which is the first prayer of the defendant, it is Trite Law that an application to arrest a judgment or ruling is unknown to our jurisprudence. In the case of Ukachukwu Vs. PDP 2014 4 NWLR Pt. 1396 at 65; Onnoghen JSC has this to say: “an application to arrest a judgment about to be delivered by a competent court/tribunal is unknown to the jurisprudence of this country and consequently incompetent and misconceived in law and fact” In this context therefore, the instant prayer as contained in the application or motion of the defendant dated the 27th of May 2014, brought a day before the ruling to be delivered on the 28th of May seeking to arrest the said ruling is an abuse of the court process. The concept of abuse of court process involves circumstances and situation of infinite variety. Its common feature however is the improper use of the judicial process by a party in litigation to interfer with the due administration of justice. This is exactly what the defendant counsel in the instant motion has done. Consequently when an abuse of court process occurs, the courts do not take it lightly, as it is not a mere irregularity. It is a fundamental vice punishable by dismissal of the offending process. Moreover, in the case of Newswatch Communication Ltd Vs. Attah 2006 12 NWLR (Pt. 993) 144 per Mohammed JSC; The Supreme Court said; “The rules of the court do not make provisions for an application to arrest judgment which is about to be delivered by a court. An application not recogrised by the rules of court cannot be deseribed as a proper application” As a corollary, the defendant in this application, has not drawn my attention to any authority, case law or the rules of this court containing arrest of ruling or judgment about to be delivered by the court. The words “stay”, “arrest”, “suspend” all mean one and the same thing. This court cannot stay or arrest or suspend its own ruling because it is not provided for in any portion of the rules of this court and my research has not provided me with any case law that support the position of the defendant . See also the cases of: (a) Bob –Manuel Vs. Brigg (1995) 7 NWLR Pt. 409 537 (b) Shettina Vs. Goni 2011 18 NWLR Pt. 1279 413 (SC) at 446 para. A-C; 485 para D-E. The defendant counsel also prayed the court to set aside the proceedings of 1st April 2014 for being in breach of the defendants fair hearing. It must be emphasized that the proceeding in question took place on the 2nd of April 2014 and not 1st of April 2014. The hearing notice served on the defendants counsel which is an exhibit in the motion reads; “TAKE Notice that the above mention case will now be listed for adoption of written address on preliminary Objection before the National Industrial Court of Nigeria sitting at 31 Lugard Avenue Ikoyi, Lagos on Tuesday 2nd April 2014 at 09:00am.” The said notice was received and acknowledged by the defence counsel on the 18th of March 2014, Seven days before the original date fix for the adoption and 14 days before the new date fix for the adoption. The defendant counsel never border to cross check from the court registry if he finds the date ambiguous or confusing. In any case, what is ambiguous in 2nd April 2014? If the prefix “Tuesday” was misleading to counsel, the question then is, did he appear in court on that Tuesday which was 1st April 2014? If he had appeared in court on Tuesday 1st April 2014, his attention would have been drawn properly and reminded too by the court registrar that the hearing notice reads 2nd April 2014. In fact the court sat on 2nd April 2014 and the defendant and his counsel who is now complainant was conspicuously absent without reason or excuse. In that circumstance, the court is not obligated to wait for anyone. The defendant counsel was also not around to move his motion dated 31st March 2014 and as such it was struck out. The written address on the NPO was deemed adopted by the court and the case was adjourned for ruling. Justice is not a one way traffic it is also for the society, the court and the claimant. Where therefore, a party to a suit has been accorded a reasonable opportunity of being heard and in the manned prescribed under the law, and for no satisfactory reason or explanation that party fails or neglects to attend the sitting and proceedings of the court, that party cannot thereafter be heard to complain of lack of fair hearing. In the case of Gbagi Vs. Okpoko 2014 4 NWLR Pt. 1396 at 136 the court heed as follows; “It is incumbent on the litigant who failed to go to court after he had been duly intimated by a hearing date to enquire as to what took place in court when he was absent” The hearing date in this case was appropriately given to the respective parties through their counsel as can be glean from the copies of the hearing notices in this suit and duly endorsed by the respective counsel as recipients. The dates of receipts are also clearly written. The proof of service is unmistaken in content and in the identities of the addresses. The court went further to hold in Gbagi N Okpoko as follows:- “Once the preliminaries of a case has been completed (as in this case) namely the service of writ, entry of appearances, it is the duty of counsel to keep abreast of the business of the court. Thus a counsel cannot be heard to complain that he was not aware of the date a case is fixed for hearing” Section 36(4) of the 1999 constitution of Nigeria as amended talks about hearing of cases within a reasonable time. How can this be achieved when a date is given, hearing notice is communicated and the defendant applicant is absent without excuse or justifiable reason? To compound the issue, the litigants were absent as well; The date 2nd April 2014 is clearly written on the hearing notice. The element of additional record “Tuesday” which the defendant counsel wants to make an issue out of is of no moment. A heavy weather cannot be made out of this issue because no counsel or party can be misled in that circumstance. If at all the defendants counsel had a doubt as to the date inscribed as Tuesday 2nd April 2014 instead of Wednesday 2nd April, there is a serious duty on him to clarify from the court and not to sit in the comfort of his chambers to pick and choose the day of the week convenient to him, and of course to his own peril or detriment which is self inflicted. Furthermore, what is the invanring of date in our jurisprudence? It does not include the day of the week. Consequently the defendant/applicant counsel is expected to jettison the day of the week “Tuesday” and concentrate on the date on the hearing notice which is 2nd of April 2014 duly served and acknowledged by him. Where a party had a notice of the date of hearing and place of hearing which is the principle of Audi alteram partem arising from the rule of natural justice, he cannot turn around to complain of denial of fair hearing right. Any attempt to indulge counsel in this respect will amount to unwittingly promoting indolence, non-challance in the conduct of cases, without taking into consideration the provision of section 36(4) of the 1999 constitution which requires hearing of a suit within a reasonable time. See the cases of Mirchadani Vs. Pinherro 2001 3 NWLR (Pt. 701) 557: Kubau Vs Rilwanu 2014 4 NWLR Pt. 1397 284 at 308 paras F-H where the Court of Appeal held that: “A party who failed to attend the court on the date given cannot turn around to complain about breach of his right to fair hearing having been given the opportunity by communication of the date of adjournment to him.” On the third prayer in the motion seeking for an order of transfer of this case file to the Hon. Chief Judge for re-assignment to another Judge, I find this type of application very strange on the following grounds: (1) The defendant counsel ought to avert his mind to the fact that there is no nomenclature as Chief Judge in this court; counsel ought to take pains to know the title and nomenclature being used in the Nigerian Court System since he is a stakeholder. (2) It does not lie in the hands of any Judge to transfer a case duly assign to him when no cogent reason in advance and there exist no circumstance to warrant such decision to be contemplated. The defendant counsel has not advanced any reason for that prayer. All what the court has done in this case is to ensure that counsel are diligent and are alive to their responsibilities by avoiding unnecessary delays; In NNPC Vs. Amadi 2000 10 NWLR (Pt. 674) 76 at 100. The Supreme Court frowned at unnecessary delay through the instrumentality of preliminary Objection when Uwais JSC said: “I believe that counsel owe it a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts” In fact the essence of labour court as a specialize conflict resolution mechanism institution will be defeated if speed is jettison. Within the realm of labour dispute, speed in adjudicating labour matters is a prerequisite because the nature of an employee interest in going to court against his employer (as in this case) is one in personami not in rein, or in perpetuity. Generally speaking in all labour dispute cases, the employee just need to know for instance in case of termination, whether it was done rightly or wrongly. Even if he is given the wrong verdict by the court, that verdict afford him the opportunity of re-organising his life and move forward rather than spending 23 on preliminary objection as in Obiewuebi Vs. CBN 2011 7 NWLR Pt. 1247, 465 at 498 after which the case was reverted to the lower court for retrial. Moreover, by section 12(2) (a) of the National Industrial Court Act 2006 and section 37(3) of Trade Dispute Act Cap T8 Laws of the Federation of Nigeria which provides respectively as follows: “…the court (a) may regulate its procedure and proceedings as it think fit.” (a) “may regulate its procedure and proceedings as it thinks fit, and shall not be bound to act in any formal manner;” This court has the powers to regulate its procedure and proceedings in the interest of labour justice. This is exactly what the court did on the 28th of May 2014. In the circumstance and in view of all what I have said so far in this ruling including my reasoning’s and conclusions, the application of the defendant fails and it is accordingly dismissed in its entirety. I make no order as to cost. --------------------------------- Hon. Justice P.O Lifu JP. Judge