IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 3rd day of May, 2024                      

SUIT NO:   NICN/PHC/70/2023

 

BETWEEN:

MR. PRINCE RICHY-----------------------------------------------------------CLAIMANT

 

AND

INTERNATIONAL CONTAINER TERMINAL SERVICES LIMITED--DEFENDANT

                                                                                               

Representations:

M.H. Benetowe for the Claimant.

D.O. Nwoye for the Defendant

Ruling.

This suit was commenced by a general form of complaint filed on the 19th day of July, 2023 along with a statement of fact, list of witness, witness statement on oath, list of documents to be relied upon and copies of the said documents.

The Claimant is by the Complaint and statement of fact claiming against the Defendant the following reliefs:

 

i.                    A DECLARATION that the Summary dismissal of the Claimant for allegation of criminal conspiracy, aiding and abetting, etc, without trial and conviction by a Court of competent jurisdiction was unlawful and a breach of the constitutional principle of fair hearing.

ii.                 AN ORDER of this Honourable Court compelling the Defendant to reinstate and restitute the Claimant's job and to pay the Claimant all outstanding salaries and allowances accruable to him from when he was dismissed to the determination of this suit.

iii.               AN ORDER COMPELLING the Defendant to pay onto the Claimant the sum of One Hundred Million Naira only (N100, 000, 000.00) as general damages for the sundry actions and inactions of the Defendant.

iv.               Cost of suit.

 

In reaction to the claims, the Defendant filed a conditional appearance and statement of defence on the 7th day of November, 2023. The Defendant on same date filed a notice of preliminary objection brought pursuant to Order 17 and 18 Rule 2 of the National Industrial Court Rules (Civil Procedure) 2017 and under the inherent jurisdiction of this honourable Court.

The said notice of preliminary objection is praying this court for the following:

1.         An Order dismissing and/or striking out the Claimant’s suit in its entirety for lack of jurisdiction.

And for Such further and/or other orders this Honourable court may deem fit to make in the circumstance.

The grounds upon which the said notice was predicated on are:

1. This Honorable Court lacks the jurisdiction to determine the Claimant's claims.

2. That there is a subsisting court order per Hon. Justice Z. M. Bashir in Suit No: NICN / PHC/25/2022 dismissing the Claimant's claims against the Defendant.

3. The subject matter, parties and reliefs sought in this suit are the same as those claimed in the previous suit: NICN/PHC/25/2022 wherein this court, ordered a dismissal of the Claimant's claims in its entirety.

4. The Court's adjudication over the Claimant's claim will be tantamount to appeal before a court of co-ordinate jurisdiction.

 5. The Claimant's suit is an abuse of court process.

 

In support of the notice of preliminary objection, The Defendant filed a 13 paragraphed affidavit deposed to by one Ayodele Olatunbosun accompanied with a written address. Arising from the said written address, Counsel to the Defendant formulated two issues for determination to wit:

a. Whether this Honorable Court lacks the powers to adjudicate over the Claimant's claims as same would amount to overruling the subsisting order of Hon. Justice Z. M. Bashir of the National Industrial Court, a court of co-ordinate jurisdiction which already dismissed the Claimant's claims in a similar suit in suit no: NICN/PHC/25/2022.

b. Whether the Claimant's action is an abuse of court process?

In arguing issue one, counsel contended that where a court lacks jurisdiction to entertain a matter, it lacks the power to exercise any power in relation to the said suit or matter. He added that the issue of whether or not this court can entertain a suit seeking reliefs which have already been dismissed by a court of co-ordinate jurisdiction is one touching on the jurisdiction of the court as it is trite law that no court has jurisdiction to reverse a subsisting order or decision of a Court of co-ordinate jurisdiction. Counsel referred to the case of Akinbobola v. Plisson Fisko Nigeria Ltd. (1991) 1 NWLR (Pt.167) 270 and Mattaradona v. Ahu (1995) 8 NWLR (Pt. 412) 225 at P. 241, paras. B-C.

Counsel posited that the Claimant had filed an earlier suit [Suit No. NICN/PHC/25/2022] claiming the same reliefs which are being sought by the same Claimant in this present suit [Suit No: NICN/70/2023], as set out in Paragraph 2 (iv) of the Affidavit in support. Counsel added that this court upon its power to dismiss a suit where issues have been joined acted in line with the provision of Order 61 Rule 7 of the Rules of this court in dismissing the earlier suit. Counsel also cited the case of Egbukohia v. Onyegbule [2015] 8 NWLR 383 (Pp. 395-396, paras. G-A) CA and posited that an order of dismissal creates a bar to subsequent suits.

Counsel also argued that the Claimant has failed to comply with the court order for cost made on 12th July 2023 which required the Claimant to pay to the Defendant the Sum of N50, 000 as cost of the action.

In arguing issue two, counsel cited the cases of A-Z Petroleum Products Ltd v. Suregate Integrated (Nig) Ltd (2019) LPELR- 48937(CA) P. 23 Para. B; Okafor & Ors v. AG & Commissioner for Justice & Ors (1991) LPELR-2414(SC) and RE: NIMASA (2019) LPELR-48872(CA) P. 24 & 25, all on what abuse of court process is and what would constitute abuse of court process. counsel posited that Claimant had earlier commenced the same suit on the same subject matter as shown on Exhibit BKC A, while the Defendant had joined issues based on Exhibit BKC C.

Counsel posited that the instant suit is an abuse of Court process given the fact that the Plaintiff's claims have been dismissed by a court of Competent jurisdiction and these same claims have been re-instituted against the same court of co-ordinate jurisdiction rather than on appeal. Counsel cited the case of Alli v. N.U.C. (2018) 15 NWLR (Pt. 1641) (P. 174, para. H) SC and concluded that the Plaintiff's suit is frivolous, and constitutes an abuse of court process and same should be dismissed immediately.

 

In reaction to the Preliminary objection, Claimant on the 5th of February 2024 filed a 7 paragraphed Counter Affidavit deposed to by Prince Richy accompanied with a written address. Arising from the said written address, counsel to the Claimant formulated two issues for determination to wit:

1.      Whether this Honourable Court lacks the jurisdiction to hear and determine this suit merely because Suit No: NICN/PHC/125/2022 was filed earlier and dismissed before hearing was to commence.

2.      Whether the Claimant's claim is an abuse of Court process.

In arguing the two issues together, counsel posited that where a suit is dismissed without hearing the matter on the merit, the mere dismissal of the suit in such circumstances does not deprive the party against whom the dismissal order is made from refiling the action. This is so because the law is that such dismissal order is viewed as mere striking out since the matter was not heard on its merit. Counsel in this regard cited the cases of AMADI VS. RUFUS & ORS. (2021) LPELR-53360 (CA) P. 8, Paras. A-E.

Counsel argued that the suit was struck out upon the application of the Claimant after discovering that he sued a wrong party which (Party) was not even a juristic person, as Defendant. Counsel referred to Exhibit A annexed to the Claimant/Respondent's Counter Affidavit and contended that the court in Suit No: NICN/PHC/125/2022 did not make any pronouncement on the merit or otherwise of the suit neither did the court determine the rights of the Claimants in the suit.

Counsel also posited that the parties in Suit No: NICN/PHC/125/2022 are not the same as the parties in this suit. In Suit No: NICN/PHC/125/2022, the Claimant sued Onne Multi-Purpose Terminal (An International Container Terminal Services Group Company) which was discovered to be the wrong party and a non-juristic person. Counsel submitted thereon that the implication of this is that the present suit is neither incompetent nor an abuse of Court process. Counsel cited the cases of UNITY BANK PLC VS. OLATUNJI (2013) 15 NWLR (Pt. 1378) 503 at 534 at 534 C-E, KANTIGI VS. CHAIRMAN OF THE EFCC (2022) LPELR-58814 (CA) P.24, Paras. E-F and I.T. B. PLC. VS. OKOYE (2021) 11 NWLR (PT. 1786) P.163 @ Pp. 201-202, Paras. F-H

Counsel argued further that the principle of res judicata also does not avail the defendant as the parties in the earlier suit were not properly constituted, adding that the Claimant's right to access the court and to have his case fairly heard is a fundamental human right that inures in his (Claimant's) favour. Counsel cited Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and concluded by urging the court to dismiss the preliminary objection.

In view of the foregoing, I have taken a careful consideration of the ground of the preliminary objection. I have also given adequate consideration to the argument of both counsel based on the issues formulated in their respective written addresses and reply on point of law filed by the Defendant and arising therefrom, I find that the issue for the determination based on the preliminary objection is to wit:

Whether in view of the circumstances of this case, this suit constitutes an abuse of court process, thereby robbing this court of jurisdiction.

In addressing the foregoing, I am not oblivious of the simple highlight of the instant objection which is to the effect that the Claimant had earlier initiated the claims in the instant suit in a previous suit with suit number NICN/PHC/125/2022 which was dismissed by this Court.

The Defendant had contended that the instant suit is an abuse of court process as the reliefs sought in the instant case are the same as the earlier one and the effect of the dismissal order made on the earlier suit is that the Claimant cannot refile the instant suit for re-litigation.

The Claimant’s position is also very straightforward to the effect that the Claimant contends that the earlier suit was against Onne Multi-Purpose Terminal (An International Container Terminal Service Group Company) who was then an improper and non-juristic party. Claimant posited that in fact, it was the Defendant who raised the observation as to the non-juristic capacity of the then Defendant in their statement of defence leading to the Claimant’s decision to withdraw the suit.

The foregoing means that the Defendant is contending that there is abuse of court process in view of similar reliefs sought and predicated on same facts, while the Claimant is contending that there is no abuse since the parties are not the same.

Bearing the foregoing in mind, the question that naturally arises is what constitutes an abuse of court process. The answer to this was elucidated upon in the case of R-BENKAY NIGERIA LIMITED. v. CADBURY NIGERIA LIMITED (2012) LPELR-7820(SC) where the court held that:

"The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:- a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent's notice. d) Where an application for adjournment is sought by a party to an action to-bring an application to court for leave to raise issues of fact already decided by the lower court. e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application. h) where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexacious and an abuse of court process." Per ADEKEYE, J.S.C. (Pp. 25-26, paras. F-G)   

The very first circumstance noted in the foregoing authority points to the instant case as it notes that it will be an abuse of court process where there is institution of a multiple actions on the same subject matter against the same opponent on the same issues.

The conjoined factors here is that it must be on the same subject, against same opponent and on the same issues. It is in the light of these conjoined factors that I have taken into account the exhibits annexed to the affidavit and counter affidavit filed herein.

Accordingly, I have juxtaposed Exhibit BKC A, which is a statement of fact in suit NICN/PHC/125/2022 with the statement of fact filed in the instant suit. In doing so, I find that the facts stated therein Exhibit BKC A are similar with regards to the Claimant’s dismissal from employment and the reliefs sought are equally the same. However, while the Claimant, as can be seen on the Exhibit BKC A, is the same as the Claimant in the instant suit i.e. Mr. Prince Richy, the Defendant therein is Onne Multi-Purpose Terminal (An International Container Terminal Service Group Company) while the Defendant in the instant suit is International Container Terminal Services Nigeria Limited.

I have equally taken a look at the statement of defence filed in the said earlier suit, particularly paragraphs 3 and 4 as contended by counsel to the Claimant to find that the Defendant therein contended that it is not a juristic personality and that a certain International Container Terminal Services Limited is the entity responding to the averments of the Claimant.

What the foregoing finding indicates is that the Defendant in suit NICN/PHC/125/2022 is not the same as that in the instant case. Also considering the fact that the Defendant in the previous suit was not a juristic entity as contended by the Defendant in the earlier suit, it will be an undue reprobation for the same entity to turn around to say that this suit has been earlier instituted against it when in actual fact, it was not a party to the earlier suit.

The factors for determining multiplicity of suit actually starts with the parties being the same as in the former with the instant. It is the first consideration to be made before looking for variance or similarity in the subject matter and issues. In the instant case, the parties are not the same as the circumstance of the former suit shows clearly that the instant Defendant was not the non-juristic entity sued in the former. Hence, such defendant cannot complain of any irritation or abuse.

I should at this juncture also mention that I am not oblivious of the contention of counsel to the Defendant that suit NICN/PHC/125/2022 was dismissed pursuant to Order 61 of the Rules of this Court and the effect is that this court cannot entertain the instant suit as the only action left for the Claimant is an appeal. In this regard, I must state that the contention is misconceived. This is because the Claimant is not seeking for a relisting of the suit that was dismissed. What is rather before this court in this instance is the Claimant instituting fresh action against a Defendant who was not a party in the earlier suit and moreso, the earlier suit was not considered on the merit as it was only dismissed following an application for withdrawal and in accordance with the Rules of Court which states that the effect of the withdrawal at that stage of the case is dismissal due to the fact that the defendant had filed a defence.

Instructive to note that despite the provision of the Order 61 Rule 7 of the Rules of this Court which states to the effect that where a Claimant withdraws a suit after the Defendant has joined issues by filing a defence, the suit shall be dismissed, I must state that indeed, there is no provision of the Rules forbidding a matter that has not been heard on the merits from being re-filed. It is equally authoritative to reiterate that the general position of the law is that it is not in all cases that pronouncement of dismissal amount to finality of a case which would call for parties to go on appeal. In the case of ATTA V. AKPOTI-UDUAGHAN & ORS (2022) LPELR-59128(CA)   (PP. 44-45 PARAS. E)

"In any case, it is not every pronouncement or Order of dismissal that would automatically terminate a suit in finality. The Order must be properly construed. If the circumstances and issues which formed the basis of the dismissal Order do not rationally connote or be capable of connoting a finality to a suit, such dismissal would be regarded as an Order striking out the suit simplicita. See Obasi Brothers Merchant Co. Ltd vs. Merchant Bank of Africa Securities Ltd (2005) All FWLR (Pt. 261), 216 at 232; Panalpina World Transport (Nig) Ltd vs. J. B. Olandeen International & Ors (2010) LPELR - 2902 (SC); Abah vs. Monday & Ors (2015) LPELR-24712 (SC)." Per GAFAI ,JCA (Pp. 44-45, paras. E-B)

 

Bearing the circumstance leading to the instant case in mind, there has not been any consideration for the merit of the case presented by the Claimant in the instant case before and moreso as the instant suit is between the Claimant and a Defendant different from the Defendant in the previous suit.

Having said that, I should also mention that counsel to the Defendant contended in the written address that there is an order for cost in the sum of N50,000 against the Claimant that is yet to be paid. In this regard, I must state that while the Claimant made no reaction whatsoever to the said contention, the Defendant failed to establish when the order was made and I cannot find any such proof of such order made by this court. Exhibit BKC B which is an enrolled order of this Court in Suit NICN/PHC/125/2022 which is annexed by the Defendant bears no such directive either. 

In the light of the foregoing, the lone issue formulated for the determination of this suit is resolved in favour of the Claimant to the effect that upon a careful consideration of the circumstances of this case, it is crystal clear that the parties are not the same as in Suit No:NICN/PHC/25/2022 which the claimant brought an application to withdraw. The order of dismissal therein can be the same as the effect of striking out as the case was not considered on its merit, consequently, this court is convinced beyond conjecture that this suit does not in any way constitute an abuse of court process and accordingly this court is fully clothed with jurisdiction to hear same. In other words this suit does not constitute an abuse of court process, and indeed, this court is properly vested with jurisdiction to hear and determine this matter.

In the final analysis, the preliminary objection of the Defendant lacks merit in its entirety and same is accordingly dismissed.

Ruling is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE