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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: 4TH MARCH, 2015 Suit No. NICN/ABJ/57/2011 BETWEEN MR. OLUWOLE OYEGUN CLIAMANT AND NIGERIAN EXPORT PROMOTION DEFENDANT COUNCIL REPRESENTATION Ken. D. N. Obinatu Esq for the Claimant. E. S. Danjuma Esq for the Defendant. RULING By a Motion on Notice dated 3rd February, 2015 and filed on 4th February, 2015 the Defendant/Applicant prays for the following Order:- 1. An Order of this Honourable Court setting aside the order closing the case of the defendant and/or foreclosing the defendant’s right to defend this case and allowing the defendant to commence their defence of this suit. 2. And Such Further or Other Orders and the Honourable Court may deem it fit to make in the circumstances of this case. The Motion was supported by an affidavit of 5 paragraphs sworn to by Juliet Oluchi Okonkwo a litigation Clerk in the office of Peter A. Dauda & Co, the Solicitor to the defendant. In support of the Motion on Notice is a written address of the defendant. In reaction to the Applicant’s application the claimant’s Respondent filed a counter-affidavit in opposition to the Motion on Notice sworn to by Oluwole Oyegun the Claimant/Respondent in this case. Attached to the counter-affidavit is the written address. In adopting the written address the learned counsel for the defendant/applicant raised an issue for determination in this application which is:- Whether from the circumstances the defendant is entitled to defend this matter. In arguing this issue the learned counsel submitted that the law is that in the determination of civil suits, a party should be accorded ample time and facilities to prosecute his case as well as be accorded a fair hearing at every stage of the proceedings for a just determination of the case put forward by them and in the conduct of their cases. This right includes the right of a counsel of their own choice. Counsel referred to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. That no party should be condemned unheard. The court is expected to hear the case put forward by each party to a dispute and made a decision on the merit on each case. This is so because it is the duty of the court not only to be fair to all parties and do substantial justice without resort to technicalities. It is justice that must only be done but must be seen to have been done. Counsel cited the following cases. AGBO V CBN (1996) 10 NWLR (Pt. 478) PG. 370 at 379, C & C LTD V ATIMATE INDU. LTD (2004) 2 NWLR (PT. 857) PG. 272 AT 278(3) 279(5), 281 9 – 10 & PAGES 292 – 293 (PARAS A – E & H – D) AND OTAPO V SUNMONU (1987) 2 NWLR (PT. 58) PG. 587 Where in the decisions of the court can be summarised in the decision of the Supreme Court as follows:- It is the duty of the courts to aim at doing substantial justice between the parties and not let that aim be defeated by technicalities. He went to submit that for the events that have occurred in court on this matter as deposed to in the affidavit the defendant would have concluded its case and this matter would have been determined by now and this application would not have been necessary. That in the affidavit in support of this application and all the supporting Exhibits, the defendant is entitled to defend this matter. In his reaction to the applicant’s Motion the learned counsel raised three issues for the court to determine to wit:- a. Does the applicant/defendant have legal vires to place a unilateral order of stay of proceedings on the Honourable Court by virtue of his application for transfer of this case? b. Does an application for transfer of a case to another Judge automatically translate to an order of stay of proceedings. c. Can the applicant ‘arrest’ this Judgment at this point in time by setting aside the order closing/foreclosing its defence considering the facts that led to the Judgment. On the first issue the learned counsel for the claimant submitted that the only reason by the applicant for not opening his defence is that he filed a petition/application before:- a. The Honourable Court in a withdrawn motion dated 14th day of November, 2013, b. Because he petitioned the President of the National Industrial Court vide applicant Exhibit B to transfer the case based on the unstanstantiated reason of bias and prejudice. The most importantly the main reason is found in the Applicant’s either Exhibit C wherein the Applicant openly and without and fear and respect to the court usurped the power the powers of the court and placed a stay of proceedings in the suit as its own pleasure. That there was no application before this court for an order of stay of proceedings instead the defendant flew into an unknown and expensive luxury of ordering the court, via applicant’s Exhibit C to adjourn the case sine-die. My lord this is unheard of. That the act is anti justice and hostile to legal proceedings. That the court in order 30 Rules 1 & 2 made elaborate provisions as regards steps and procedures in respect of the way and manner for the application for stay of either execution or proceedings. The learned counsel went further to contend that Exhibit D the applicant’s affidavit did not carry either expressing or by implication staying of proceedings. He went further to contend that the President of National Industrial Court Nigeria does not have the power to stay of proceedings, the power under order 30 Rules 1 & 2 can only be exercised by the court seized of the matter i.e. Court 3. That the application is terribly faulty and devoid of any merit. It is therefore follows that the defendant does not have the legal vires to place a stay of proceedings order on the court. That the refusal of the defendant to participate in the proceedings by opening it defence is a clear election by the defendant to abandon the defence. It is now too late to re-open same. The law is that a party who deliberately refused to participate in a case cannot complain of breach of fair hearing. OKIKE V LPDC (2006) 1 NWLR (PT. 960) Ratio 4 AT P. 99 PARAGRAPHS F – G. A party who had the opportunity to attend the sitting of a court to present his own side of the case, as in the instant case, but chose to be absent, cannot later turn around and claim that he was denied of his right of fair hearing as provided in S. 36(1) of 1999 Constitution. The choice to stay out and abandon their defence was carefully made by the defendant. Therefore, the application to set aside the order for the foreclosure of defence and re-open the defence and final address in unjust, unfair and unreasonable. If the applicant is not aware of the proceedings it would be different. Counsel referred to the case of Newswatch Communications Ltd V ATTA (2006) 12 NWLR (PT. 993) RATIO 8, 9, 10 & 11 all to the point that a party must take advantage of fair hearing provided by the court otherwise he should not complain against any breach thereof as there would be nothing to complain of. On issue B the learned counsel for the claimant in arguing the issue referred to Exhibits A & B is an appeal if anything to the pleasure of the Hon. President of the National Industrial Court to look at the facts chronicated and apply his discretion one way or the other by either transferring the case out or refusing to do so. Exhibit A and B do not have the magic wand or mantra, or cajoling power, to force the President to do their binding. That though the petition has entered but that did not translate to an order for stay of proceedings or even suggest it. He went further to submit that the only fake, shameless and arrogant order of stay of proceedings is the one contained in applicant’s Exhibit C (the letter to the Registrar of Court 3 by Peter Dauda & Co). He went further to submit that applicant’s counsel professional discretion and his interpretation of the law was terribly over stretched. That parties are responsible for their decisions whether right or wrong. The defendant elected to abandon its defence. This is made worse because hearing notices were served on the defendant directly but it chose to dance along with the counsel thereby colouring itself with the same decision. On issue C the learned for the claimant submitted that they relied on the records of this Honourable Court as a further pillar for his argument. He said the application before the court is tantamount to an arrest of Judgment. Why? Counsel referred to the case earlier cited Newswatch Communication Ltd V Atta (Supra). The counsel contended that the essence of this application is to force the court to abort the Judgment that is to be delivered on the 5th of March, 2015. That the claim is a charade. It is a fluke and the truth is that the defendant was afforded all the windows of presenting its defence but it elected to abandon same. The counsel for the claimant commended the decision of the court in the case of Newswatch Communication Ltd V Atta. In conclusion the counsel urged the court to dismiss the application and proceed to deliver Judgment that the application is frivolous, and an attempt to arresting Judgment. On 15th November, 2011, the case was adjourned to 8th December, 2011 because the defence counsel Peter Dauda Esq filed the memorandum of conditional appearance, and preliminary objection which were served on the claimant’s counsel that morning. On 8th of December, 2011 the preliminary objection was held and Ruling was reserved for 14th of December, 2011. On 14th December, 2011 the Ruling was read and the case adjourned for further hearing to 30th of January, 2012. On 30th January, 2012 the claimant’s counsel K. Obinatu Esq was in court while the defendant’s counsel Peter Dauda Esq was absent in court. Through a letter he sent he claimed he was bereaved. For this reason the case was adjourned to 21st of February, 2012 for hearing. On the 21st February, 2012, a counsel holding the brief of Peter Dauda A. J. E. Okoh brought an application for extension of time to file defendant statement of defence out of time. The claimant counsel complained that he was just served the bulky document that morning and would need about 2 days to study the document if there would be need to reply to some issues raised. The court allowed A. J. E. Okoh moved his motion which was granted and the claimant was also given opportunity to react to the statement of defence by the court granting his application for adjournment. Thereafter, the case was adjourned to 8th March, 2012 for further hearing. On the 8th March, 2012 the matter could not go on because the claimant decided to file a motion for leave to file his reply to statement of defence. The case was adjourned to 22nd March, 2012. On 22nd March, 2012 both counsel were present in court. The claimant counsel submitted before the court that he was served with a motion titled re-proposed amendment statement of defence that morning. He then submitted that considering the fact that the pending motion is a reply to the statement of defence he felt it would be neater to keep the record straight by filing an amended statement of claim. The case was adjourned to 17th April, 2012. On the 17th April, 2012, both counsels were present. The claimant brought two motions the first one for leave to file a defence to the defendant statement of defence. The 2nd motion was for leave to amend the endorsement and the statement of claim. Peter Dauda Esq who was being represented in court by Mrs. Rahila Asaje objected to the last motion being moved according to him he was only served yesterday and the rules gives 3 clear days for him to react. The case was adjourned to accommodate his objection to 7th May, 2012. The case came up on the 24th of May, 2012 Peter Dauda was absent in court he claimed he was bereaved. He gave the same reason earlier. There was no letter to that effect. Peter Dauda has in Chambers other counsel namely Mrs. Rahila J. Asake, J. E. Okoh. He was accommodated the case was adjourned to 31st May, 2012. On the 31st May, 2012, the claimant moved his motion to amend his complaint and statement of defence. Peter Dauda filed a counter-affidavit opposing the application. Ruling on this application was given on the 29th June, 2012 and the claimant was given leave to amend his complaint and statement of claim. On the same day 29th June, 2012 when the ruling was given the defendant being represented by Rahila J. Asake holding the brief of Peter Dauda told the court of the intention of the defendant to response to the amended statement of facts and the claim, that they intend to file a new defence by 17th of July, 2012. The court obliged them and the case was adjourned to 9th November, 2012. On 9th November, 2012 Peter Dauda was represented by Rahila J. Asake. The defendant wasted the time of the court rather than filing its new amended statement of defence as he requested for, he decided to mislead the court, asking for leave to file a new motion for the amendment of the new amended statement of defence by 15th of November, 2012. The case adjourned to 6th of December, 2012. On 6th of December, 2012 both parties were present in court, the defendant’s counsel was yet to file his statement of defence. Peter Dauda Esq wasted the time of the court. He claimed he was waiting to get additional document from the defendant and that he was still holding meeting with the legal department and all those involved in the matter, in which proceedings has commenced. The court also indulged him inspite of the objection raised by the claimant’s counsel. The case was adjourned to 22nd January, 2013. The claimant’s counsel argued that if by that date the almighty amendment is not filed the window of right to defend be closed. The case adjourned to 22nd January, 2013. Before I proceed further, it should be note that for a whole year Peter Dauda Esq frustrated the case and wasted the time of the court, and all effort to make the case progress to hearing failed. On 22nd January, 2013 both the counsel were in court. The claimant’s counsel told the court that the case was slated for the moving of the motion for the amended statement of defence. When it was Peter Dauda’s turn to talk he told the court that the defendant had just filed the motion the previous day and that they were not aware that the witness statement on Oath was not there. They needed to go back and filed the witness statement on Oath. In order that the matter could make progress the claimant’s counsel who was served in the court hall that morning decided not to oppose Peter Dauda’s motion for leave to amend the statement of defence. The motion was moved and granted. Peter Dauda decided he was not ready to go on with the case that day. The case was adjourned to 5th of February, 2013. On the 5th February, 2013 the application of the defendant for leave to file additional witness statement on Oath was move. The claimant’s counsel asked for a short adjournment to 20th February, 2013 to enable him react to the amendment statement of defence. On the 20th February, 2013 the case could not proceed because the claimant also is seeking for leave to file his witness statement on Oath which was not filed at the time the statement of claim was filed with the thought that the Practice Direction issued by the President of the court was not applicable to them since the case was filed before the Practice Direction was issued. I disagreed with the counsel and ordered him to file one. The case was adjourned to 14th March, 2013. On 14th of March, 2013 when the claimant moved his motion for leave to file his witness statement on Oath, out of time Peter Dauda in order to cause delay and frustrate the case raised objection to some of the paragraphs. He was overruled by the court. On the 14th March, 2013, hearing of this matter commenced and examination in chief concluded the same day. The matter was adjourned to 29th April, 2013 for cross examination. Before I continue I wish to state here that because of the nature of this case, and because of a very long argument between the two counsels, my policy is to have very few cases each time this case is coming up. The purpose is to make it possible for parties to have enough time to do their case. On the 29th April, 2013, the matter came up for cross-examination, both counsel were present in court. The cross-examination began on the 29th April, 2013 the case was adjourned to 16th May, 2013 for continuation of cross-examination. On 16th May, 2013 the case could not proceed as claimant’s counsel was absent due to ill-health. The claimant’s counsel suggested dates not convenient to Peter Dauda the court took the date suggested by him which was 26th June, 2013. On the 26th June, 2013 the claimant’s counsel who was ill the last time was in court Peter Dauda Esq the defendant’s counsel was absent and no letter or reason(s) given for his absence. The court also accommodated his excesses. The case was adjourned to 11th July, 2013. On 11th July, 2013 both counsel were in court Peter Dauda came with an application to file other witness statement on Oath. The application was opposed by the claimant’s counsel, the objection was later withdrawn. The application of the defendant to file further witness statement and additional witness statement of defence was granted. Thereafter, on this day Peter Dauda Esq continued the cross-examination of the claimant which was not concluded because Peter Dauda Esq said he was not ready to continue with the cross-examination and the case was later adjourned to 21st October, 2013. On 21st October, 2013, the claimant and his counsel were present. Peter Dauda Esq was absent and no counsel was present for the defendant. But before the adjournment on 21st October, 2013 the learned counsel for the claimant Bar. Ken Obinatu, informed the court, I quote:- Just about fifteen minutes ago the counsel for the defendant came into the court. He excused me out and told me about his health condition that precludes him from continuing the case. Based on this he pleaded with me to ask for a short adjournment to enable him attend to his health condition. I conceded to the adjournment. He suggested two dates 18th & 19th November, 2013. I prefer 18th November, 2013. Based on this information from the claimant’s counsel the case was adjourned to 18th November, 2013. On 18th November, 2013 the claimant’s counsel was in court Peter Dauda Esq was absent. The claimant responded to Peter Dauda’s absence this way, I quote:- Obinatu - on 21st October, 2013, this matter came up, counsel for the defendant came into the court called me out and informed me that he was very sick and that he could not stay for the hearing. This information I relate to the court subsequently, the court graciously granted us an adjournment till today for continuation of cross-examination. Prior to 21st October, 2013, there was a Marathon cross- examination by our written records it is 18 pages which is yet to be concluded as at to date when the counsel gave us that information on the 2nd October, 2013, we took him being very sincere and straight forward. Last Friday, I got a shocking text on my phone from the counsel to the defendant informing me that he has filed a motion on this matter and that the matter cannot be on. Neither me nor my client has been served with any motion, but this morning 18th November, 2014 I tried to make enquires from the registry and the Secretariat to my shock and disappointment, that the counsel to the defendant filed a motion asking the court to disqualify itself and transfer the case to another court on a spurious and careless ground that cannot be substantiated at all. To add insult to injury he dumped the motion in the court and assumed jurisdiction on this case himself and decided not to show up in the court neither him nor his representatives. In view of the fact that I have not been served of the motion up till this moment, I am not in a position to join issue with the motion. I will rather restrict myself to the business of the day which is cross-examination of the claimant. In order not to help his spurious assertion. I will not make an application to foreclose his cross-examination. I will make an application for a short adjournment for us to join issues on the application. In the course of proceedings around 11.35am, the counsel holding the brief of Peter Dauda came into the court and introduced himself as S. A. Yilkis. He told the court that they have a motion dated 14th November, 2013 and filed on 15th November, 2013. He is seeking the transfer of the case to another Judge. The counsel was told that the motion could not be moved because Peter Dauda Esq the defendant’s counsel was yet to serve the claimant’s counsel the motion for his reaction. The case was adjourned to 26th November, 2013 for the moving of the motion. On the adjourned date of 26th November, 2013, the claimant’s counsel Ken Obinatu Esq was present in court, neither Peter Dauda Esq nor any of his counsel were present in court to move the motion for transfer of case to another Judge. The claimant’s counsel informed the court that they filed a counter-affidavit to the motion. The matter could not proceed because the bailiffs were yet to serve Dauda the counter affidavit. The case was adjourned to 6th December, 2013 for moving of the motion. The case suffered series of adjournment until 17th December, 2013, when one Emmaneul Danjuma with one L. L. Sayma appeared in court as counsel representing the defendant. Emmanuel Danjuma told the court, I quote:- I am just coming into the matter, and I pray that the court should grant me all the opportunities to put in my best to see that the case is completed in time. Obinatu – counsel for the claimant told the court that the application being made by the counsel has been repeated several times by counsel in this case. That on 18th November, 2012 one counsel S. K. Yalkis came and told the same story. He said the difficulty is not the granting of the adjournment but the poor man the claimant. After all said and done the case was adjourned for Emmanuel Danjuma to come in as the counsel in this case. His presence as the new counsel in the case was confirmed by the defendant representative in the court in the person of Bar. Anchor who told the court that E. S. Danjuma is the new counsel and that Peter Dauda Esq is no longer in the case. The case was adjourned to 30th January, 2014 for the new counsel to come in properly. On 30th of January, 2014 the new counsel Danjuma said, I quote:- Danjuma - In the light of what happened at the last adjournment I discovered that our motion dated 14th November, 2013 and filed 15th November, 2013 deserve to be withdrawn in the interest of justice. And I formally asked for the withdrawal of the said motion. On this date the claimant was represented by Eze Christiana who did not oppose the application. Thereafter, E. S. Danjuma Esq requested for an adjournment to enable him continues with the cross-examination. This application was granted and the case adjourned to 11th March, 2014. On the 11th of March, 2014 the cross-examination opened since 29th April, 2013 was continued and concluded this day by the new counsel E. S. Danjuma Esq. The case was adjourned to 30th April, 2014 for defence to open his case. On 30th April, 2014 the matter could not be heard and was adjourned to 28th May, 2014 due to Mr. Emmanuel Danjuma, purported ill-health. The case was further adjourned to 25th June, 2014. On 25th June, 2014 the claimant’s counsel was in court the defendant’s counsel Mr. E. Danjuma was again absent. The court obliged the defendant further and granted an adjournment to 15th July, 2014. On 15th July, 2014, at the hearing of the case the claimant’s counsel appeared for his client. For the defendant Peter Dauda who last appeared in this case on the 11th July, 2013 surfaced and announced himself as the counsel for the defendant. It was then the claimant’s counsel raised an objection to his appearance that the proper counsel in this case is Mr. Emmanuel Danjuma that so far there has been no notification of change of counsel again by the defendant to be Peter Dauda. I will quote the claimant’s counsel:- Obinatu - The matter is for the opening of defence. On 17th December, 2013 the counsel in the name of Danjuma Emmanuel appeared in the case and sought for a notice of change of counsel. In the court the permanent representative of the defendant Barrister Achor was present in the court. The Barrister Achor briefed the court on why they debriefed Peter Dauda. After which the court made an order allowing Danjuma to be the counsel. We seek the representative of NEPC as well as other from Danjuma. In view of this new development the court requested the representative of the defendant in the court that day Mrs. Julie Onuoke a legal officer in the defendant Organization to get a confirmatory letter from the defendant on the change of counsel. That the counsel on record is Emmanuel Danjuma and the defendant has not furnished the court of the name of the new counsel. I demanded a formal letter from the defendant in that as far as the court is concerned Peter Dauda had ceased to be counsel in this matter. He was last seen or appeared in the case on the 11th July, 2013. The counsel on record is Emmanuel. S. Danjuma Esq. The case was adjourned to 17th September, 2014 for the court to be informed of who is the counsel for the defendant. On this date the defendant was absent, there was no counsel representing the defendant and the permanent representative was also absent. The case was further adjourned to 16th October, 2014. On the 16th of October 2014, Bar. Danjuma appeared in the court and the defendant representative Bar Ben Achor was also present in court. Bar. Danjuma informed the court that he was no longer in the case. The court requested for formal letter to that effect from him which he failed to write. The matter was adjourned to 27th of October, 2014, for the defendant to comply with court order whether there has been another change of counsel. On the 27th of October 2014 the claimant counsel was present the defendant counsel was absent and his representative Bar. Ben Achor was also absent. At this junction the claimant counsel addressed the court on the antecedents of the case and the counsel in this case and told the court that there comes a time when the court must not only bear its teeth but also bites. He said the court has indulged the defendant for a very long time and he shall therefore be applying for their defence to be foreclosed. He further said that the claimant closed his case on the 14th of March 2013 and the cross examination of the claimant was concluded by Bar. Danjuma on the 11th of March 2014. To the claimant counsel the defendant had taken everybody including the court on a ride. That the defendant matter should be foreclosed having been given the opportunity to present his case and has failed to do so. The court then ruled that the defendant’s case is foreclosed and adjourned for filing of final written addresses by parties. Thereafter the case was adjourned to 27th of November 2014 for adoption of final written addresses. On the 27th of November 2014, the claimant counsel was in court but there was no legal representation as per counsel for the defendant. However Bar. Ben Achor representing the defendant was present in court and brought in an application for an adjournment of the case. The claimant counsel did not object to their application for adjournment in view of the fact that he brought in application for an extension of time to file his final written address. That the defendant is still within time to file their response on point of law to the claimant’s final written address and that the motion for extension of time is not ripe for hearing at that morning. The case was adjourned to 9th of December 2014 for adoption of final written addresses. On the 9th of December 2014 the claimant counsel was in court but the defendant was neither represented by any counsel nor his representative Bar. Ben Achor in court. Thereafter, the final written address filed on behalf of the claimant was adopted and the case was adjourned to 5th March 2015 for judgment. Having read and considered the submissions of parties the issue for this court to determine is whether the court can grant the relief sought by the applicant for the court to set aside the Order closing the case of the defendant and allowing the defendant to commence their defence of this suit. It will be necessary to give the background of this case as this will assist the court to arrive at a decision whether to grant the application or not to grant the application of the applicant. This case was assigned to Court 3 by the Honourable President of the court on 18th October, 2011. Counsel appeared for the parties Ken Obinatu Esq appeared for the claimant while Peter Dauda Esq appeared for the defendant. The case came up for the 1st time for hearing in Court 3 on the 28th October, 2011. On the day the matter was for mention. On the day Peter Dauda Esq informed the court that the defendant intended to file memo of appearance and request for an adjournment. The matter was adjourned to 15th November, 2011 for further mention, while the defendant was given 14 days to file his defence by 10th November, 2013. On the 15th November, 2011 the counsel were present according to the defence counsel he said they filed the memorandum of conditional appearance and Motion that has not been served on the claimant. The claimant’s counsel filed his response within 7 days to the Motion filed by the defendant. The case was adjourned to 8th December, 2011. On 8th December, the preliminary objective raised by the defendant was moved and the ruling adjourned to 14th December, 2011. On the 14th December, 2011, the counsel were present and the ruling was read. The case was adjourned to 25th of January, 2012 for further hearing. On the next adjourned date the claimant counsel was present, the defendant counsel Peter Dauda was absent, he sent in a letter that morning of the case that he was bereaved at Peter Dauda’a instance, the case was adjourned to 21st February, 2012. At that the claimant counsel observed that Peter Dauda had not filed the defendant defence. The case was adjourned to 21st February, 2012. The adjournment at the instance of Peter Dauda Esq. On 21st February, 2012, the claimant counsel Ken Obinatu Esq was in court the defendant counsel Peter Dauda Esq was absent but one J. E. Okoh Esq was present holding the brief while Mr. B. C. Achor the Legal Officer presented the defendant. The counsel holding brief of Peter Dauda brought a Motion which was moved and granted. The claimant’s counsel applied for time to react to the Motion of the defendant. This was granted and the case was adjourned to 8th March, 2012. Because Peter Dauda Esq failed to file the defence in time, adjournment was forced to 8th March, 2012 to allow the claimant to react. On the 8th March, 2012, both parties were not ready for the case they asked for adjournment. The adjournment was at the instance of both counsel. They both agreed to be back to court on 22nd March, 2012. On the 22nd March, 2012 the claimant told the that business of the day were moving of the Motion and hearing of the case. But that just that morning of 22nd March, 2012 he was with a motion for amendment of statement defence the defendant. The counsel it would be better to wait for the amendment so that they can react to the amendment once and for all, as that would be tider. For this reason the case was adjourned 17th April, 2012. On the 17th April, 2012 claimant counsel Ken Obinatu Esq was absent but a counsel S. N. Okoro held his brief. One Mrs. Rahilla J. Asaje held the brief of Peter Dauda Esq. On the 17th April, 2012, the matter could not go further because the response of the claimant to the amended statement of defence was filed on the defendant 13th March, 2012, the counsel Mrs. Rahilla submitted that the Motion of the claimant was not ripe for hearing as they were only served on 16th April, 2012, though they were served advanced copy on Friday. The counsel said they intend to file a counter – affidavit and they were still within the time allow by law to file the counter. The case would not go on and it was adjourned to 7th May, 2012. The counsel told the court that they intend to file the counter by 19th April, 2012. On the 7th May, 2012 the claimant as usual with his counsel were present. The defendant representative and the counsel Peter Dauda were absent. There was no reason given for this. The case was adjourned to 31st May, 2012 at the instance of the defendant. On the 31st May, 2012 claimant counsel was present, the respondent counsel was also present. The claimant moved his Motion dated 12th April, 2012 the Peter Dauda opposed the Motion for the claimant to amend his statement of facts and complaint. The court adjourned to give Ruling on 26th June, 2012. On 29th June, 2012 the claimant counsel was present Peter Dauda Esq was absent but Rahilla (Mrs) held the brief of Peter Dauda Esq. The defendant then sought of time to file a response to the claimant’s amendment. The case was adjourned to 19th July, 2012 for this the court did not sit and the case adjourned to 9th November, 2012. On this day both counsel were present in court. He submitted that he had pending Motions to move dated 21st March, 2012, there was no objection to this motion. He did not file the paper but seeking for an Order to do this. Peter Dauda Esq was also was to file the new amended statement of defence by 15th November, 2012. Case adjourned to 6th December, 2013. On 6th December, 2013, the counsel were present. The claimant counsel Ken Obinatu Esq drew the attention of the court to the Order of the court that Peter Dauda Esq counsel to the defendant should file the defendant’s amended statement of defence but as 6th December, 2013, he has not filed the defendant amended statement of defence. When it was time for Peter Dauda Esq counsel for the defendant to respond, he told the court that he was still holding meeting with the legal department and all involved in the matter. He requested for an adjournment. The claimant’s counsel countered all that he said and he said that if the court was mindful of granting the adjournment and that if the almighty amendment was not filed therefore, the next adjourned date, then the window of right be closed, so that the hearing can continue. Case adjourned to 22nd January, 2013. I must purse here and say that from 28th October, 2011 to 6th December, 2013 a period of 2 year nothing concrete was done and for reasons best known to Peter Dauda Esq he frustrated the case from progress. On 22nd January, 2013 the same deliberate delay and deliberate attempt to frustrate the case continued. On this day both parties were present. It was the morning of 22nd January, 2013 that Peter Dauda Esq served the claimant’s counsel his amended statement of defence. The application to file amendment was made to this court on 17th April, 2012. On this same day the Motion for the statement amendment was granted and deemed properly filed and served. The case was adjourned to 5th February, 2013 for hearing. On the 5th February, 2013, both counsel were present, rather than allow the hearing to proceed, Peter Dauda Esq came with another Motion this time to file additional statement on Oath. The Motion was granted. The claimant counsel asked for an adjournment for claimant to file his witness statement on Oath. The case was adjourned to 14th March, 2013. On 14th March, 2013, both counsel were in court, the court claimant could moved the Motion for extension of time to bring in the claimant witness statement on Oath. This led to heated argument between the claimant’s counsel and the Peter Dauda the counsel for the defendant. At the end of the day the court ruled that the matter must be heard that day after it had been adjourned for over 2 years, mostly because Peter Dauda Esq has decided to frustrate the hearing of this case. The claimant entered the box and the examination in Chief was done and concluded the same day on 14th March, 2013. The case was adjourned to 29th April, 2013 for cross – examination. On the 29th of April, 2013 both parties were present, Peter Dauda Esq commenced the cross – examination. The case was adjourned to 16th May, 2013 for continuation of cross – examination. On the 16th May, 2013 Peter Dauda Esq counsel for the claimant was present, claimant counsel Ken Obinatu was absent due to ill health. At the instance of the claimant’s counsel the case was adjourned to 26th June, 2013. On 26th June, 2013 the claimant counsel Ken Obinatu Esq was present, Peter Dauda Esq was absent there was no reason given for the absence. As a result of this the case was adjourned to 11th July, 2013. On 11th July, 2013, both counsel were present Peter Dauda Esq defendant counsel brought another Motion seeking leave to file witness statement on Oath. The claimant counsel did not oppose the application so that the case can progress. After the granting of the Motion, the counsel continued with cross – examination of the claimant which he did not complete. The case was adjourned to 21st October, 2013. On the 21st October, 2013 the claimant counsel, Ken Obinatu Esq was present, Peter Dauda Esq counsel to the defendant was absent. On this day Peter Dauda was in court but not dressed up. He called the claimant’s counsel out that he was ill and pleaded with the claimant’s counsel to accept an adjournment. According to what the claimant’s counsel told the court he said he took him into the weigh room and that he was personally confirming his health condition. Both counsel agreed the hearing be adjourned to 18th November, 2013. On the 18th November, 2013 claimant’s counsel was present, defendant’s counsel Peter Dauda Esq as usual was absent there was no letter excusing his absence. The counsel according to the claimant’s counsel told the court that Peter Dauda Esq was in court that morning that he had filed a Motion. But that he could not comment on it because he had not been served and that they would like to react to this. It can be seen that Peter Dauda Esq has abandoned the cross – examination of the claimant he had commenced and continued with his pranks to frustrate the hearing of the case. In the course of listening to the claimant’s submission a counsel came late to the court that he brought a Motion for transfer of the case to another Judge. Claimant counsel said that the Motion was not ripe for hearing because he was yet to be served and to react to it. The case was adjourned to 26th November, 2013 for the moving of the Motion for transfer of case. On the 26th November, 2013 the claimant’s counsel was present the defendant counsel was absent and no reason was given and he was nowhere to move his Motion. The case was also adjourned to 6th December, 2013 for moving of the Motion. On 6th December, 2013 the court did not sit because of Judge Conference going on at that time. The case came up on 17th December, 2013. The claimant’s counsel was present Peter Dauda Esq was absent in court and no reason given for his absence. However, 2 counsel named Danjuma Emmanuel Subihni Esq and L. L. Tsanya announced their appearances for the defendant. They informed the court that they were the new counsel for the defendant and the Peter Dauda Esq was no longer in the case. They asked the representative of the defendant in court Barrister Ban Achor to confirm this. He confirmed and told the court that E. D. Subihni as the new counsel for the defendant. The new counsel Mr. E. S. Danjuma pleaded passionately that he should be given opportunity to defend this case. The claimant’s counsel was not to defend this case. The claimant counsel was not too much impressed by the submission. However, the court granted the prayer and allowed to take his appearances. The case could not progress as an adjournment for the counsel to come in properly and to acquaint himself with the progress made so far in the case. The case was therefore adjourned to 30th January, 2104. On January, 2014, the new counsel E. S. Danjuma moved a Motion to withdrew the application for transfer of the case to another Judge filed and abandoned by Peter Dauda on 14th November, 2013. After the Motion was struck out E. S. Danjuma pleaded for another adjournment to get the proceedings in Order to complete the cross –examination. As the court has been indulging the defendant for so long another adjournment was granted to 11th March, 2013 almost a month and half to enable E. S. Danjuma the new counsel to continue the case on behalf of the defendant. On the 11th March, 2014, the new counsel concluded the cross – examination and the case was adjourned to 30th April, 2014 for defence to open it case. On 30th April, 2014 both counsel were absent, the claimant sent to the court that he was indisposed while the defendant lawyer was bereaved. The case was adjourned to 25th June, 2014. The claimant’s counsel was present the usual practice of the defendant the new counsel was absent. The court did not understand the game the new counsel was about to play. The case was adjourned to 15th July, 2014. On 15th July, 2014 the old counsel Peter Dauda Esq who last appeared in this case on the surfaced and announced his appearance for the defendant. The claimant counsel observed that it would be necessary for the court to know exactly the counsel for the defendant. This is because E. S. Danjuma is the counsel on record the court has not told of any change. Then I told the lady from the defendant organization that the counsel on record is E. S. Danjuma Esq as confirmed by Ban Achor Esq the representative of the respondent. I told her that it would be tidier and neater and in order that confusion should not set in I would require a letter from the Organisation i.e. Nigeria Export Promotion Council who is to represent them again in this matter. The case was adjourned to 17th September, 2014 for defence. On 17th September, 2014, the claimant’s counsel was in court the defendant was not represented by any counsel or any of the representative of the defendant present in court. The case was adjourned to 16th October, 2014 and the court ordered hearing notice to be served on E. S. Danjuma and the defendant proper. On 16th October, 2014, the claimant’s counsel was present while E. S. Danjuma the counsel on record was present. Ben Achor Esq the representative of the defendant was present. E. S. Danjuma told the court he was no longer in the case. I repeated the directive to Ben Achor Esq that the defendant should intimate the court who the counsel is in the matter. The case was adjourned to 27th October, 2014. On the 27th October, 2014, Ben Obinatu Esq appeared for the claimant the defendant was neither represented by the permanent representative Ben Achor nor by any counsel. The claimant adjourned the case to 27th November, 2014. Counsel moved the court to foreclose the defendant from defending the case, submitting that the court had over indulged the defendant for so long. All attempt to make them defend the case had been abused by the defendant through his counsel. That the claimant had closed the examination in chief 2 years that the defendant every body force cherry ride and it is time for the court to be firm and take a decision to forclose the defendant from defending the case. The case was adjourned to 27th November, 2014 for the claimant to file his final written address. On the 27th November, 2014 the claimant counsel was present in court, there was no legal representation for the defendant. The claimant having just filed an application for the extension of time to file the final written address. The defendant was served the final written if they wish to file any response to it. The defendant ignored and refused to file any. Rather they brought an application for an adjournment. The case was adjourned to 9th of December, 2014 for adoption of final written address. On 9th December, 2014, the claimant counsel was present, the defendant was neither represented in court by his permanent representative Ben Achor or any counsel. On this day the claimant Ben Obinatu adopted the final address and the case adjourned to 5th March, 2015 for Judgment. I have decided to trace the antecedent of this case to the date the case was adjourned to Judgment. I wonder what other word can be used to described what the court suffered in the hands of Peter Dauda Esq, E. S. Danjuma Esq and Ban Achor for no reason. I must also say that I have never met Perter Dauda Esq before, and so far that was the only case he had handled in this court half way before he disappeared. Similarly, I have never met Ben Achor Esq and E. S. Danjuma had handled matter in my court before, I mistakenly took him as a gentleman. As for Ben Obinatu, I have never met him before and so far this has been the only case he has handled in the court. I must also say that there was not a single time that Peter Dauda ever apologised for his absence in court. The court having taking the decision to foreclose the defendant to defend the case in my view is proper. The defendant has chosen not to defend the case, decided to frustrate the claimant and the court. I have over indulged the defendant and I have given them opportunity to defend the case. No party will be forced to do what he did not want to do. It is for the counsel Peter Dauda to dictate to the President of the court who should handled the case that he was engaged to handle. This is nothing but an affront. For the years I have sat in court 3, I have never been so insulted and rubbished like the treatment I received from Peter Dauda in particular. He must realised that the case was not assigned to me so that he can direct the way and manner the case would be heard. A careful perusal of the narrations given above, shows that the (the defendant) was absent in court for over 26 times without any just cause. The claimant’s counsel absent twice while both counsel were absent twice. The National Industrial Court Rule Order 20 R 1 & 2 provides:- 1. Where a case 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 has upon him or her. 2. Where any party to the proceedings has been duly served with notice to appear or the party is to the satisfaction of the court aware of the adjourned date and without reasonable excuse fails to appear, the court may consider and deal with the matter in the absence of such party. In order not to repeat all that the claimant counsel submitted I am in complete agreement with him in to to with his submission. The President of this court has confidence in me to do justice between parties and refused to transfer the case to another Judge. It is not the presence of Peter Dauda to decide where or who should hear any matter he appears for in this court. It would be unfortunate for judiciary the day the President of this court will take dictation from Peter Dauda Esq as to how he is to run the court. From the submission it is clear that the defendant elected, decided to ignore the court, disobeyed the court’s order and neglected to defend the case. No court will wait for anybody to walk in and out of court as he or she pleases. The petition does not operate as stay of proceeding. For the reasons given above, the defendant application lacks merit and is hereby dismissed. Ruling is entered according. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE