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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 17th November, 2014 SUIT NO: NICN/ABJ/192m/2014 Between: Engr. Soibi Dede (PHD) Claimant/Respondent And National Office for Technology Acquisition and Promotion (NOTAP) and Others Defendants/Applicant REPRESENTATION Claimant present, Defendant absent; Micheal Eleyinmi for the claimant /respondent . C. I. Okpoko for the defendant /applicant RULING By a motion on notice brought pursuant to order II Rule 10 and order 30 (1) of the National Industrial Court (NIC) Rules 2007 and under the inherent jurisdiction of the court, the defendant / applicant prayed the court for an order staying the execution of the judgment delivered by this court on the 20th of May 2014 pending the hearing and determination of the appeal lodged against the said judgment. The application is dated and filed on the 9th of July 2014. On the 29th of September 2014 the claimant respondent filed a counter affidavit. When this application came up for hearing on the 20th of October 2014, the defendant /applicant counsel Mr. C I Okpoko sought orally to withdraw this application on the ground that the court of appeal being seized of the matter, has robbed this court of any jurisdiction to entertain this application. He predicated this submission on the fact that the condition of appeal have been met, the appeal duly entered, record compiled and transmitted and briefs of argument filed and exchanged. In his response, counsel to the claimant /respondent, Mr. Eleyinmi opposed the oral application for withdrawal but rather urged the court to dismissed the application as it constitute an abuse of court process. He contended that the content of his counter affidavit being filed engendered the withdrawal of the stay of execution application in this of court by the defendant /applicant as they have seen that their application has no merit; Moreover counsel contended that the filing of the same application for stay at the court of appeal makes the one in this court a gross abuse of the process of the court. He referred the court to the case of Anah Vs. Anah 2009 9 NWLR Pt 1091 75 at 83 at paragraph H ; Eleburuke Vs. Tawa 2010 LEPLR 40 at 98; Arupo Vs. Aiyeleru 1993 2 SCNJ 104; since the two application pending in this court and the Court of Appeal are in respect of the same right, the process should be dismissed and not struck out, the counsel submitted; In His reaction on point of law, Mr. Okpoko reinterated his earlier submission to the effect that since the application for stay is now pending at the court of appeal this court has no jurisdiction any longer. Counsel call in aid the case of Mohammed Vs. Useni 1998 2 NWLR Pt. 584 at 141; Mohammed Vs. Olawuni 1998 4 NWLR Pt. 287 P. 208 at 283. I have heard counsel and considered the submissions and authorities relied upon; The application before the court is for stay of execution of the judgment of this court of which issues have been joined as the respondent has filed a counter affidavit and a written address. On the day fixed for hearing, the applicant has made an oral application to the court to withdraw the application for stay on the ground that the same application has been filed before the court of appeal where the appealed have been entered. Both parties are ad idem as to the fact that the appeal is already pending at the court of appeal. There are also in agreement as to the fact that a similar application for stay is already filed before the court; The respondent counsel had argued that the application sought to be withdrawn is an abuse of court process and ought to be dismissed; Abuse of court process involve a situation of multiplicity of court process on the same subject matter before one or more courts of competent jurisdiction and between parties. This is normally done to harass, embarrass or annoy the other party. It is also normally condemnable by the court. See the case of Hon. Commissioner for Education Vs. Professor Lawrence Amadi LER (2013) SC 56/2012. Where Ogunbiyi JSC Condemned such action. Such process filed in abuse of process becomes incompetent in law and that court lacks the jurisdiction to hear and determine the same on merit. On this note, I agree with Mr. Okpoko that since a similar application is pending before the court of appeal, I lack the jurisdiction to entertain the one before me. It is trite that where a court is satisfied that the proceeding before it is an abuse of process, it has the right to invoke its coercive powers to punish the party in abuse of its process. This can be done either by dismissing or striking out the offensive process. See the cases of Ikine Vs. Edjerode 2001 8 NSCQR 342 at 382 – 884. The circumstances of this case at hand shows that issues have been joined. The respondent has reacted to the defendant’s process. I expect the applicant to come and withdraw this process before filing the same or similar process at the court of Appeal. In the case of Ekudano Vs. Keregbe 2008 All FWLR Pt. 405 1641 paragraph A-B Akintan JSC held as follows; “Where the request for discontinuance is made after the date fixed for hearing, the plaintiff may discontinue only with the leave of the court and subject to conditions that may be imposed by the court. The trial judge may order that the case be struck out or make an order of outright dismissal. Whichever order the court makes will depend on all the circumstances of the case and an appellate court will not ordinarily tamper with the trial courts exercise of such discretion” I have looked and considered all the circumstances of this application particularly the process filed in abuse which no court should indulge or tolerate. It is my considered view that this is the right type of application that should be dismissed and it is accordingly dismissed. I make no order as to cost. ---------------------------- - Hon. Justice P.O Lifu (JP.) Judge