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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 19TH MARCH, 2015 Suit No. NICN/ABJ/334/2013 BETWEEN ENGINEER BERNARD ABIANGA ASUQUO CLAIMANT AND CHRIS-EJIK INTERNATIONAL AGENCIES LTD DEFENDANT REPRESENTATION C. k. Agwu Esq for the Claimant. Godswill Mrakpor Esq with Boro Ejiro Esq for the Defendant. RULING The Defendant/Applicant by a motion on notice dated 13th November, 2014 and filed on 14/11/2014 prays the court for the following relief. AN ORDER of stay of further proceedings in this suit pending the hearing and determination of the Appeal currently pending at the Court of Appeal. AND ANY other order or such directions the Honourable Court my consider appropriate to make in the circumstance. The grounds for the application are that:- 1. The Application has a pending appeal that borders on want of Jurisdiction arising from defective service. 2. The appeal of successful is capable of disposing of the case as nothing can be done without the proper invocation of Jurisdiction. The application is supported by an affidavit sworn to by Boro Ejiro a legal practitioner in the firm of west point chambers of counsel to the applicant. There is also a written address in support of the motion on notice. In the written address the applicant raised an issue which is whether the applicant is entitled to the relief sought? In respect of this issue the applicant submitted that first condition that must be for the granting of a stay of proceedings pending appeal is that there must be a pending appeal. That condition has been satisfied by Exhibit A attached in support of the affidavit. That next condition, there must be special circumstances to enable the court exercise its discretion in the matter judiciously and judicially. The counsel listed the following 5 criteria as constitute special circumstance. 1. When the ground of Appeal is on Jurisdiction. 2. When the ground of Appeal is on a recondite point of law 3. When the judgment creditor is a man of straw. 4. When the res is perishable 5. When there is potential of some substantial injustice or some irreversible circumstances resulting from non-stay of proceedings. The counsel cited the case of University of Ilorin V Akinyaju (2007) ALL FWLR 1767 at 1780 paragraphs A- B. The applicant contention is that the appeal borders on want of jurisdiction and has consequently filed her appeal. That on this score the applicant has satisfied the requirements of the law for the grant of stay, and the applicant has show special circumstances to justify the exercise of the court discretion in her favour. Applicant further argued that the issue of jurisdiction is central and crucial and prudence requires that the issue be accomplish on the Court of Appeal. Another principle the applicant submitted that is peculiar to this court is found in Order 30 Rules 2 &3 of the National Industrial Court Rules 2007. That if the court has ordered for stay and within 21days the applicant fails to transmit its records to Court of Appeal the order party can come to court for the court to discharge the order. That within 4days the complied with the provisions and transmitted the records. He submitted further that they have filed the appellant brief. The provision of Order 30 R2 & 3 is to ensure that they do not use the application as a play to delay the hearing of the case. The applicant said it has fulfilled the conditions for the grant of the application for stay of proceedings and urged the court to grant the application for stay. In response to the application, the claimant/respondent filed a counter affidavit Sworn to by Ekene Ngene a litigation secretary in the firm of Messers. O. J. Aboje & Co, the counsel to the claimant/respondent in support of the counter- affidavit the claimant filed a written address as argument in the suit. In the address the claimant contended that the bedrock of this address is that the applicant without first moving/withdrawing the motion on notice dated 28th day of October, 2014 before the Court of Appeal still pending there that the present motion for stay of proceedings dated 14th November, 2014 the applicant cannot be moved. That this is nothing but an abuse of processes of court. The counsel cited the case of N.I.W.A V S.T.B. PLC (2008) 2 NWLR (Pt.1072) at 501. The claimant submitted that where an abuse of the process of court is alleged that the appropriate for the court to make is to dismiss the application, claimant urged the court to dismiss the application for stay of proceedings. In response to the claimant’s submission the defendant filed a further and better affidavit in support of his application for stay of proceedings. The applicant raised an issue whether it is in all cases where a party files similar applications before two different courts at the same time it constitutes an abuse of court process? The applicant answered no that it is not in all cases where a party files similar applications before two different courts at the same time that it constitutes an abuse of court process. The applicant said there is an exception to this he referred to the case of BON V ABIOLA (2006) LPELR – 7600 (CA). That before the filling of two similar applications in two different courts can be said to amount to abuse of court process two ingredients must be present by the party alleging abuse of court process:- (1). It application must be coupled with intention to harass, intimidate, irritate and annoy the respondent. (2). That the intention or purpose of the application is to interfere with the administration of justice i.e. delay the matter indefinitely. That based on the case of BON V ABIOLA (Supra) that filing the multiple processes can never amount the abuse of court process. The applicant further submitted that in paragraphs 3, 4, 5 and 6 they stated the reasons for filling of the case at Court of Appeal instead of National Industrial Court of Nigeria. In that the applicant belief that the proper place to file the application was the Court of Appeal. That after filing of the appeal at the Court of Appeal and the court was informed of the pending of the motion for stay at Court of Appeal, they were told the stay was not filed in the court and so the court cannot take cognizance of this. That ordinarily they ought to have withdrawn that one filed at the Court of Appeal but that can only be possible when they have the opportunity to do so. He submitted further that the appellant brief Exhibit A had been filed waiting for the claimant to file his processes before a date can be assigned to the appeal. The applicant submitted that he cannot be guilty of filing the application for stay with the intention of interfering with the due administration of justice. In conclusion the applicant contended that the claimant has not been able to prove all the ingredients of abuse of court process as he has not demonstrated that the motion was filed to harass, intimidate, irritated and annoy the claimant/respondent. That because the appeal borders on jurisdiction it is expedient and prudent to stay proceedings and await the outcome of the appeal. He urged the court to grant the application for stay of proceedings pending the hearing and determination of appeal pending at the Court of Appeal. I have careful appraised the issues raised by the parties, the issue for the court to determine is whether the filing of the application for stay at Court of Appeal before filing a similar application at National Industrial Court of Nigeria does not constitute an abuse of court process. The court has discretion whether or not to grant the application for stay of proceedings. The law requires such discretion to be exercised by granting a stay unless strong cause for not doing so is shown. The burden of showing strong cause for not granting the application lies on the doorsteps of the claimant/respondent. In the case at hand the claimant/respondent contended that the defendant/applicant has filed on application for stay of proceedings first at the Court of Appeal without moving or withdrawing same at the Court of Appeal. The claimant submitting that the two applications are still pending before the two courts, for this reason that this is nothing but an abuse of court process. That the law is clear that when a party is seeking the same relief from 2 courts that it is an abuse of court process. Claimant referred the court to the case of Chindo V Isah (2011) 4 NWLR (Pt. 1236) P. 37. The applicant argued in support of his application that the application was not meant to irritate, harass, and annoy the claimant. The applicant relied on the case of BON V ABIOLA (2006) LPELR – 7600 (CA) that held:- That filing of two applications in different courts at the same time does not ipso - facto constitute abuse of process of court. It is trite law that the abuse of judicial process is the improper use of the Judicial process by a party in Litigation. It may occur in various ways, such as instituting a multiplicity of the same subject matter against the same opponent on the same or a multiplicity of action on the same matter between the same parties. For court in determining whether an abuse of judicial process has occurred the court will consider the content of the 1st process viz-a-viz the second to see whether they are aimed at achieving the same purpose. What is the purpose behind the instant case at the National Industrial Court of Nigeria and those behind the earlier suits in the record of Court of Appeal. The applicant has admitted that he filed the application for stay of proceedings at the Court of Appeal which has not been moved or withdrawn and has filed a similar applied for stay of proceeding at the National Industrial Court of Nigeria facts admitted need no further prove. The applicant going to file an application for stay of proceeding at the Court of Appeal without leave of this court is against the rules of National Industrial Court Rules 2007. This was pointed to the applicant when he wanted the court to stay action on the matter. He ought to have filed an application for stay of proceedings in the National Industrial Court before going to Court of Appeal. Filing at Court of Appeal before coming to National Industrial Court is capable of knocking heads with the Court of Appeal filing at Court of Appeal. The appeal filed at the court of appeal and the motion on notice filed at National Industrial Court of Nigeria all aimed at achieving generally the same purpose. In the light of this the motion on notice filed in this court is struck out it is clearly and abuse of court process. It is for this reason that I resolve the lone issue in favour of the claimant/respondent. Ruling is entered accordingly. _____________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE