Abuja – His Lordship, Hon. Justice Benedict Kanyip of the National Industrial Court of Nigeria, sitting in Abuja has upheld the preliminary objection and dismissed the matter filed by Mr. Igbinosun Friday Ese against Auchi Polytechnic and two others as the continuance of same will amount to an abuse of court process.
The court held that whatever complaints the claimant has in the instant suit can be resolved in the earlier Suit filed on 28th February 2018 pending in court, that the claimant does not need a separate suit.
On 25th May 2018, the claimant sought against defendants among others; A declaration that the recommendation by the Joint Committee of Council and Academic Board recommending the claimant for dismissal while Suit No. NICN/ABJ/58/2018, Mr. IGBINOSUN FRIDAY ESE v. AUCHI POLYTECHNIC, AUCHI & ANOR, was pending in court which was acted upon by the 2nd defendant to dismiss the claimant vide letter dated 15th day of March 2018 was irregularly issued and amount to contempt of court, is unlawful and therefore null and void.
A declaration that the letter dated 15th March 2018 dismissing the claimant from the employment of the 1st defendant was irregularly issued and an abuse of court process and therefore null and void.
Likewise, A declaration that the claimant is still in the employment of the defendants and therefore entitled to all his salaries, emoluments and all allowances from the 1st day of April 2018 till judgment and continuing till he attains the age of retirement.
The defendants in response filed a motion on notice for an order dismissing the suit for want of jurisdiction and for being an abuse of the court process on the grounds that prior to the filing of the instant suit, the claimant had already filed an application in 2018 to set aside his dismissal, that the aforesaid application filed by the claimant was granted by this Court on the 24th day of September 2018 reinstating the claimant.
The defendants submitted for determination whether the instant suit is not an abuse of the court process or whether the ruling delivered on the 24th day of September 2018 in the earlier has not rendered the suit an academic exercise as there is no longer any live issue for this Court to determine.
The counsel to the claimant stated that in spite of the pendency of Appeal and earlier suit, the defendants went ahead to dismiss the claimant from the employment that it is the very act of dismissal that the claimant is challenging before the Court, that the Court in the earlier Suit granted an order of mandatory restorative injunction to the claimant on 24th September 2018 after this suit was filed which, order the defendants have appealed against.
That in the instant case, the parties and subject matter are not the same and most importantly the ruling relied upon is interlocutory and did not finally decide the issue between the parties.
That the desirability of instituting this action is to set aside the letter of dismissal which is not one of the reliefs claimed in the earlier Suit.
After careful evaluation of all the processes filed, and the submissions of the learned Counsel from both sides, the Court presided by Hon. Justice Benedict Kanyip expressed thus;
“The proper thing the claimant ought to have done instead of having two processes on the same issue was to stick with his motion of 30th April 2018 in that Suit No. NICN/ABJ/58/2018 and seek the protection of the Court by praying for the setting aside of the letter of dismissal as well as the said dismissal pending the determination of his suit.
“Now, if the order of mandatory restorative injunction of 24th September 2018 is not obeyed by the defendants, the claimant’s counsel knows what to do i.e. activate the coercive powers of the Court to deal with the infracting defendants.
“It was pointed out to this Court that there is an application at the Court of Appeal for leave to appeal against the order of mandatory restorative injunction of 24th September 2018. This does not take away the fact that the order of 24th September 2018 is valid and subsisting.
“To my mind, whatever complaints the claimant has in the instant suit can be resolved in Suit No. NICN/ABJ/58/2018, if only the claimant is patient enough and his counsel knows what to do. The claimant does not need a separate suit to sort that issue out.
“On the whole, and for the reasons given, I hold that the preliminary objection of the defendants has merit. Accordingly, the continuance of the instant suit is an abuse of court process. I so hold.”
The court dismissed the suit accordingly.
