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His Lordship, Hon. Justice I.J. Essien of the National Industrial Court of Nigeria, sitting at Enugu gave a ruling striking out incompetent motions for enforcement of Arbitral Awards in the case of AMALGAMATED UNIION OF PUBLIC COORPORATIONS CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICES EMPLOYEES (AUPCTRE) v. ANAMBRA STATE GOVERNMENT & Another.
The judgment debtors/applicants by a motion on notice dated 27th March 2017 brought pursuant to section 6(6) of the 1999 constitution sought an order of this court: Striking out Suit No NICN/EN/14/2017 – Amalgamated Union of Public Corporations Civil Services Employee (AUPTRE) V. Anambra State Government & Anor.
A similar motion seeking the same relief dated the 24th March, 2017 was filed in suit no. NICN/EN/13/2017 consolidated with Suit No:NICN/EN/14/2017 by order of this court made on the 5th February, 2018.
The applicant in the motion in both suits contends amongst others that the Judgment Creditor/Applicant/Respondent lacks the locus standi to commence and maintain this suit. He also argues that the suit was not initiated by due process and that the suit is an abuse of court process. The Judgment Debtor/Applicant also contends that by the conduct of the Judgment Creditor/Applicant, it is estopped from laying any further claims against the Judgment Debtor/Respondent. In his written argument counsel for the applicant formulated 2 issues for determination whether the Honourable court has jurisdiction to hear the suit and whether the suit is an abuse of court process.
In response to this application the Judgment Creditor/Respondent filed a counter affidavit supported by the written address of the respondent counsel.
The Learned counsel for the applicant Mr. O. Anumoye Esq. contend that this suit ought to have been instituted in Awka division of the court and relied on Order 2 Rule 1 of the NICN Rules 2017, because the Judgment Debtors are resident and carry on business in Awka. He argues that the cause of action also arose in Awka.
He contends that the institution of this suit in Enugu amounts to forum shopping and urged the court to strike out this suit.
In response to the above argument the learned respondent counsel Abiodun Akanni Esq. argues that judicial division are established for administrative convenience and that Order 2 Rule 1 (1) of the rules of this court allows processes in respect of which this court is vested with jurisdiction to be filed in any registry of the court nearest to where the defendant or respondent resides or has presence or in which the defendant carries on business. Provided that where economic, security, environment or other exigencies warrant, an originating process may be filed in the courts registry in a judicial division other than that closest to the place of residence or business of the defendants or respondents.
After reviewing the argument of the parties, the Court Presided by Hon. Justice I.J. Essien, had this to say:
I have examined the two motion dated 13th February, 2017 and filed on the 17th February, 2017. The 1st prayer on the motion paper is an application for leave. Order 47 Rule 29 (2) requires such application to be made ex-parte. It is the view of this court that the application for leave ought not to have been lumped up with the motion to enforce the award.
The non-compliance with Order 47 Rule 29 (2) cannot be treated as a mere procedural irregularity or non-compliance because of the mandatory requirement of Order 29 Rule (3) which makes it mandatory to obtain leave before enforcement of judgment by reason of the use of the word “shall” in the text of that rule.
I agree with the learned applicant counsel that the judgment creditor/respondent ought to have obtained leave before bringing the motion to enforce this award. In the circumstances this court holds that the two motions dated 13th February, 2017 and filed on the 17th February, 2017 are incompetent and are hereby struck out.
I make no order as to cost.
Ruling entered accordingly
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