THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: TUESDAY 30TH MAY, 2017 NICN/ABJ/330/2012
BETWEEN
NATIONAL UNION OF HOTELS AND
PERSONNAL SERVICES WORKER CLAIMANT
AND
- AREWA HOTELS (DEVELOPMENT) LTD
- NEW NIGERIA DEVELOPMENT COMPANY
LTD DEFENDATS
- NIGERIA NATIONAL PETROLEUM
CORPORATION
REPRESENTATION: Claimant present. Respondent absent Lucky C. Durueke for the Claimant/Respondent. O. Clarke for the Applicant 3rd Defendant.
RULING
The case came up before this Court denovo on the 26th of October 2015. It had previously been heard by Shogbola J (Retd). After several dates on which the case came up for hearing. The Court on the 28th of February 2017 heard the motion on notice filed by the 3rd Defendant (the Nigerian National Petroleum Corporation) NNPC filed on the 22nd June, 2016 under Order 11 rule 1 (2007) NICN Rules and section 12(2) of the NNPC Act Cap 123.LFN.
The motion prays for:
(i) AN ORDER striking out this suit, as against the NNPC for non-compliance with the mandatory Provisions of Section 12(2) NNPC Act.
The grounds for bringing the application were as follows:-
- a)That suit No: NIC/ABJ/330/2012 was initially before Justice Shogbola who retired and the matter transferred to this Honourable Court, wherein the matter started “de novo” thereby rendering null and void all previous and pending proceedings and orders made in this case before the order de novo was made.
- b)That by the provisions of S.12(2) of the NNPC Act an intending Claimant is under a mandatory duty to issue the NNPC one month pre-action notice of intention to initiate legal proceedings against the NNPC before the commencement of this action in (Suit No. NIC/ABJ/330/2012) in this court.
- c)The Claimant did not comply with the provision of this Section before it filed this suit
- d)That the effect of non-compliance with the provisions of the said Section renders this suit incompetent in law and the court robbed of the jurisdiction to hear and determine this suit.
The motion was supported by a 6 paragraph affidavit and a written address. The Claimant/Respondent to the motion filed a counter affidavit on 30th November 2016 of 11 paragraphs and a written address.
On the 28th February 2017 when the matter came up before this court for hearing of the application this court having become seised of the matter asked counsel for the applicant/objector about the motion filed earlier on the 28th of May 2013 which is the same as this present motion, a motion which the former court had ruled on at the pretrial stage.
To this poser by the court counsel for the objector stated that since the matter is commencing denovo all previous proceedings and orders become null and void.
The Court asked if he had authorities for the proposition herein counsel cited the cases of BABATUNDE V. PAN ATLANTIC (2007) 12 NWLR (PT. 1050) 113 and CHRIS NGIGE V. PETER OBI (2012) NWLR part 1280. Both these cases were cited in the written address of the objector. There, counsel at submissions on issue no 3 for determination; whether starting a suit de novo renders all previous proceedings and orders null and void, had submitted relying on the case of BABATUNDE V. PAN ATLANTIC (supra) as cited in NGIGE V. OBI (supra) part 1280 page 63 B-D as lifted from paras H-D of pg. 146 to 147 of part 1050 that:
“Trial de novo means trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered. It is a new hearing or a hearing for the second time contemplating an entire trial in the same manner in which the matter was originally heard and a review of the previous hearing. On hearing de novo the court hears the matter as a court of original and not appellate jurisdiction. A trial de novo means nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter or, rather, in a more general sense, the parties are at liberty to once more to reframe their case and re structure it as each may deem appropriate.”
Counsel went on to cite from NGIGE V. OBI (Supra) he did not mention the page he was citing from in his written address) from the law report from which he makes two quotations. One is from ratio 7 at page 45 of the law report on meaning of trial de novo as.” A new trial on the entire case that is not on both questions of fact and issues of law, conducted as it there had been no trial in the first instance. And pages 62-63 referred to.
The second quotation which states at pg. 47 ratio 14 on effect of starting a case de novo the Court of Appeal stated that:
“The judicial effect or consequence of starting a case de novo before another tribunal is to render null and void all previous and pending proceedings and orders made in the case before the order de novo is made.”
Counsel concluded for the objector that from the foregoing it was obvious that the orders made by the previous court, became null and void immediately this case started de novo. That among the orders made by the previous court is an order joining the NNPC as a party and as such order and others are now nullified. That the nullification of such order makes it impossible for the Claimant to rely on same because you cannot keep something on nothing. And he urged the Court to hold that the Claimant failed to comply with the mandatory statutory condition precedent in seeking to join the 3rd Defendant.
In response, at paragraphs 4-9 and 4.10 of the written address counsel submits for the respondent Claimant at 4.9 on the issue of the matter starting de novo that it does not apply in the instant situation. That the order of joinder has since been obeyed. And also the 3rd Defendant appeared before the Court before filing its motion on notice which is a waiver as it had taken steps in the matter.
At 4.10 counsel submitted further that in the instant application of the 3rd Defendant is in law an abuse of the Court process. As there was no appeal by the 3rd Defendant against the said order. (Of joinder). That the 3rd Defendant, in compliance with the order of joinder filed its Statement of Defence and has been part of the case since then, that the truth of the matter is that the 3rd Defendant does not want the case to proceed to trial and heard on the merit, that it is an abuse of court process as it interferes with the administration of justice in the circumstances of this case. He then went on to define “Abuse from the Black’s law dictionary 6th Edition as:
“Departure from reasonable use; immoderate improper use.”
COURT DECISION
Having heard both counsel in their arguments and submission. I must point out immediately the provision of the 2017 Civil Procedure Rules of the Court at order 39 rules 4, 5& 6 on Re assignment of cases which provides.
Rule 4: Whenever there is a just cause necessitating the withdrawal of a pending case from a Judge, the President of the Court may direct the withdrawal of the case from such a Judge and re assign same to another judge.
Rule 5. In any case of withdrawal and re assignment of a case in line with rule 3 of this order, any exparte or interlocutory order made by the judge from whom the case was withdrawn shall remain valid.
Rule 6. Where a case has proceeded to trial before the withdrawal and re assignment in line with the provisions of rule 3 of this Order, the Judge to whom the case is re-assigned, shall set down the hearing of the matter de novo.
These rules have amply made it clear that this case should proceed to hearing. Accordingly in line with the Provision in rule 5 cited above the previous interlocutory orders of the previous court remains valid and it includes the ruling of the Court delivered on the 13th of October 2014 and any other interlocutory or pre-trial orders before that Court retired statutorily. I so hold.
I have read the case of NGIGE V. OBI (supra) and the Court of Appeal was sitting over an election petition between the parties. I hold that the holding of the Court in that case, with due respect it did not and does not apply to this case and this Court, the case before us not being an election petition. More so the Court in the NGIGE case did hold that “Election Petitions are suigeneris and time is of essence “at page 63 paragraph E, ratio 8 at pg. 45.
Counsel for the Respondent has submitted that the application amounted to an abuse of the Court’s process; I am indeed almost persuaded by that argument, but I shall refrain from calling it and treating it as such. However if after directing the matter to proceed to hearing, similar applications were to be brought by the same party the Court may treat it as such.
The Preliminary Objection is dismissed in its entirety. Case is adjourned to 22nd June 2017 for hearing.
Ruling is entered accordingly.
___________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
