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, PhD

 

DATED: 28^TH DAY OF JANUARY, 2026            SUIT NO: NICN/PHC/05/2022

 

BETWEEN

1. DR. OLISA CHARLES
2. FLORA IYAGBA
3. OWHOFASAN AWHI
4. GREG LUMA
5. MAUREEN IWO-BROWN
6. OLOYE PERE OUT
7. OBI OZAUDU
8. TONYE OKIO -----------------------------------CLAIMANTS

 

AND

 

NIGER DELTA DEVELOPMENT COMMISSION (NDDC) ------ DEFENDANT

 

 

Representations:

Chief E. A. Eyo appeared for the Claimants.

K. C. Nwabuko appeared for the Defendant.

 

 

RULING

 

This is a ruling in respect of a Motion on Notice filed on the 28th day of March, 2025 by learned counsel to the Claimants, brought pursuant to Order 38 Rules 6(1), (3) and (4) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and under the inherent jurisdiction of this Court. Wherein the Claimant prays the court for the following reliefs;

1.     An order of this honourable court relisting the suit and

2.    And for such further order or other orders as this honourable court may deem fit to make in the circumstance of this case

 

In support of the application is a 14-paragraph affidavit deposed to by the 1st Claimant, Dr. Olisa Charles, accompanied by a written address. The Defendant, in opposition, filed a 5-paragraph counter-affidavit accompanied by a written address on the 13th day of June, 2025.

 

In the written address filed on behalf of the Applicants, learned counsel, Chief E. A. Eyo, Esq., distilled a lone issue for determination, namely whether the Applicants are entitled to have this suit relisted. Counsel submitted that the relisting of a suit struck out by a court is a matter within the discretionary powers of the Court. He contended that the affidavit in support of the motion discloses sufficient facts upon which the Court may properly exercise that discretion in favour of the Applicants. Reliance was placed on Dangardi v. Jubril (1997) 4 NWLR (Pt. 501), as well as Section 36(1) of the 1999 Constitution, counsel submitting that the broader interest of justice and the right to fair hearing would best be served by allowing the substantive suit to be heard on its merit. Counsel accordingly urged the Court to grant the application.

 

In response, learned counsel to the Defendant, Kingsley Chikezie Nwabuko, Esq., also formulated a lone issue for determination, to wit whether, having regard to the facts and circumstances of this case and the state of the law, the Applicants’ motion has merit. Counsel submitted that the application is incompetent and runs contrary to the provisions of the Rules of this Court. He argued that by virtue of Order 38 Rule 6(3) of the Rules of this Court, an application to relist a suit struck out must be brought within fourteen (14) days of the order striking out the suit, except where time is first enlarged by order of Court. Learned counsel contended that the present application was brought several months outside the prescribed statutory period without first seeking extension of time, thereby rendering the application defective. He further submitted that the Applicants ought, in any event, to have first applied to set aside the order striking out the suit. Reliance was placed on Babington-Ashaye v. E.M.A.G. Ent. (Nig.) Ltd. (2011) 10 NWLR (Pt. 1256) 479 at 540 C–D.

 

Learned defence counsel also contended that the Applicants remain in default of subsisting orders of this Court awarding costs in the sums of ?200,000.00 and ?100,000.00 respectively. Counsel submitted that a party who approaches the Court in equity must first show obedience to existing orders of the Court, and that until the Applicants purge themselves of this disobedience, they are not entitled to the discretionary indulgence of the Court. He relied on Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147 at 173 G. Counsel maintained that the Applicants have failed to place before the Court cogent, credible and compelling materials upon which the Court may properly exercise its discretion in their favour, and he urged the Court to dismiss the motion.

 

Upon a careful consideration of the submissions of learned counsel, I have examined the application for relisting filed by the Claimants/Applicants, I have also taken cognizance of the affidavit in support and the counter-affidavit filed by the Defendant, and the arguments of the learned counsel both in support of and in opposition to this application. Consequently the sole issue for determination is as follows;-

 

“Whether, having regard to the application, the Rules of this Court and the circumstances of this case, the Claimants/Applicants have placed sufficient material before the Court to warrant the exercise of its discretion to relist the suit”

 

On this issue, it is settled law that the relisting of a suit struck out by a court is a matter within the discretionary powers of the Court. Such discretion must, however, be exercised judicially and judiciously, having due regard to the peculiar facts of each case and the overriding demands of justice.

 

There is no dispute that Order 38 Rule 6(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 prescribes the time within which an application for relisting may be brought. The Rule provides thus:

 

“An application to re-list a cause struck out or to set aside a judgment under this rule shall be made within fourteen (14) days after the order or judgment or such other extended period as the Court may allow.”

 

However, it is equally trite that rules of court exist as aids to the attainment of justice and are not intended to be applied slavishly where such application will defeat substantial justice. The Court retains inherent power to depart from strict procedural requirements where the interest of justice so dictates, particularly where no substantial prejudice will be occasioned to the adverse party. This position is fortified by the provisions of Order 5 Rule 1 of the Rules of this Court which state that:

 

“Failure to comply with any of these Rules may be treated as an irregularity and the Court may give any direction as it thinks fit.”

 

Similarly, Order 5 Rule 3 provides that:

 

“The Court may direct a departure from these Rules where the interest of justice so requires.”

 

More so, Order 5 Rule 6 further reinforces the obligation of the Court in the following terms:

 

“In any proceeding before it, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.”

 

In the light of the foregoing, I take the view that the Court is not rendered powerless to do substantial justice merely because the relief sought has not been couched in the most elegant procedural form. Substance must prevail over form where justice so requires.

 

Turning now to the issue of merit, the law is well settled that in considering whether to relist a suit earlier struck out, certain guiding factors must be evaluated. The Supreme Court in Alli v. NUC & Anor (2018) LPELR-44361 (SC) identified the relevant considerations to include:

a)    whether the applicant had good reason for being absent at the hearing;

b)   whether good reason has been shown for the delay in bringing the application;

c)    whether the respondent will not be prejudiced or embarrassed if the case is relisted; and

d)   whether the applicant’s case is manifestly unsupportable.

 

Having carefully reviewed the affidavit evidence before this Court in light of the above principles, I shall proceed to evaluate the application accordingly.

 

With respect to the first condition, it is common ground that this suit was struck out on the 14th day of October, 2024. The present application was dated the 10th day of March, 2025 and filed on the 28th day of March, 2025. It is therefore apparent that the Applicants did not act timeously in bringing this application.

 

On the second condition regarding delay, the affidavit in support must be examined to ascertain whether any good reason has been furnished. I observe that no cogent explanation was expressly advanced to justify the period of delay.

 

Nevertheless, the proceedings of 14th October, 2024 reveal that the Claimants were present in court at the commencement of the session. The matter was stood down for approximately thirty-five minutes and, upon recall, the Claimants were no longer in court. In view of this absence, coupled with the antecedent lack of diligence in this case, the suit was struck out.

 

The Applicants have, through their affidavit, attempted to explain their absence at the point of recall. Although the explanation may not be entirely satisfactory, I am persuaded by the broader justice considerations that relisting the suit will not occasion any prejudice or embarrassment to the Defendant. In my view, the scales of justice in this instance tilt in favour of allowing the substantive dispute to be resolved on the merits.

 

On the issue of non-compliance with the earlier orders on costs, it is trite that while such default is relevant, it does not automatically oust the jurisdiction of the Court to entertain an application of this nature. In the peculiar circumstances of this case, and so as not to shut the Applicants out from the seat of justice, I am prepared to grant the application subject to strict compliance with the subsisting cost orders.

 

In all the circumstances, and bearing closely in mind the constitutional guarantee of fair hearing under Section 36(1) of the 1999 Constitution (as amended), I am satisfied that the justice of this case will be better served by allowing the substantive matter to proceed to hearing rather than terminating same on procedural grounds in limine. Accordingly, the sole issue for determination is resolved in favour of the Claimants/Applicants.

 

In the final analysis, this application succeeds in part, and the Court hereby makes the following Orders:

1.     The suit earlier struck out by this Honourable Court is hereby relisted.

2.    The Claimants/Applicants shall pay the outstanding costs earlier awarded by this Court in the sums of ?200,000.00 and ?100,000.00 respectively within fourteen (14) days from today, and evidence of such payment shall be placed on the Court’s file, failing which this Order shall automatically lapse.

 

Ruling is accordingly entered.

 

I make no order as to further costs.

 

………………………………………………………………..

HON. JUSTICE Z. M. BASHIR, PhD

JUDGE