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His Lordship, Hon. Justice P. I. Hamman of the National Industrial Court of Nigeria, PortHarcourt Judicial Division on Thursday 24th May in a ruling delivered dismissed preliminary objection raised by the claimant for being incompetent and also struck out motion on notice for lacking merit in a case of MR. BASOENE D. ELEKIMA & 2ORS (CLAIMANTS/RESPONDENTS) Vs. PORTS & TERMINAL OPERATORS (NIG) LTD, TERMINAL “A” as DEFENDANT/APPLICANT stated that the right of the Defendant/Applicant lies only on appeal to the appellate court.
The Defendant/Applicant’s Motion on Notice dated and filed on 5th March, 2018, praying the court for the following reliefs: An order setting aside the order made on 5th February, 2016 by your learned brother (Hon. Justice Agbadu Fishim) who originally presided over this matter and An Order striking out this matter in its entirely(sic) for want of jurisdiction of this court to entertain or determine it on its merit. Likewise An Order awarding the cost of N2,000,000.00 (Two Million Naira) against the Claimants in favour of the Defendant in this suit.
On The grounds that Neither the Claimants/Respondents nor the Defendant/Applicant is a signatory or party to the Agreement of 20/5/2008. Hence proper parties are not before the court in this suit, that The life span of the agreement which is the foundation of this suit has elapsed since 2010; therefore the cause of action has consequently expired vide Article 8 of the Agreement of 20/6/2008 among others.
The Claimants filed a Notice of Preliminary Objection challenging the competence of the Defendant’s Motion on Notice and the jurisdiction of the court to hear and determine same that the Motion on Notice is an abuse of court process urging court to dismiss it.
That it amounts to an abuse of court process for a party to disregard a previous decision of the court on the same issue and seek to relitigate on the same issue that has been decided upon by the court.
Learned Defendant’s counsel submitted that in the instant case, since the Ruling in question was allegedly given in the absence of jurisdiction and was a nullity in terms of its content and the court was not competent, this is an appropriate case where this court can set aside its ruling.
It was the further submission of learned counsel that, since the matter is starting denovo, the case must be established anew because the evidence and the verdict as well as findings at the first trial are completely inadmissible on the basis that they have been discharged or got rid of.
After reviewing the argument of the parties, the Court Presided by Hon. Justice P. I. Hamman expressed thus;
“The law is trite on what a party served with a Motion on Notice is to do; such a party is expected by law to either file a Counter-Affidavit in opposition to the application together with a Written Address, or file before the court a Written Reply on Points of Law.
In the circumstance, the Notice of Preliminary Objection filed by the Claimants ostensibly in response to the Defendant’s Motion on Notice is hereby struck out for being incompetent and an abuse of court process.
Looking at the reliefs being sought in the instant application and juxtaposing same with the reliefs in the earlier application, it is clear that the reliefs are the same.
It is not for me to begin to scrutinize the decision of my learned brother in that regard. It is also not tenable that since this matter is starting de novo before me, all previous proceedings including orders of court are no longer effective. That to my mind is not the position of the law.
The proceedings in this matter have not been set aside by an appellate court for that line of argument to be tenable. The Ruling of this court made on the 5th of February, 2016 is therefore still subsisting and valid.
Since the Defendant/Applicant has not shown or established that the court’s order made on 5th February, 2016 is a nullity or that it was made without jurisdiction, the right of the Defendant/Applicant lies only on appeal to the appellate court. I so find and hold.
In the circumstance, this application is hereby refused for lacking in merit and is consequently struck out.
