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Justice Ogbuanya upholds NIC’s 14 days appearance rule for defendants 

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Justice Nelson Ogbuanya of the National Industrial Court (NIC), Port-Harcourt has upheld the 14-day appearance for defendant sued in the court as contained in its rules. 
  
Dismissing the preliminary objection filed by the defendant in the suit between Kassem Tay v. Provita Vitaforce Foods Nigeria Ltd in suit No.NICN/PHC/392019, Justice Ogbuanya held that the 14 days required for the defendant to enter appearance in a suit in the court is valid.
   
According to the judge, it is the provision of the rules of a specialized court, adding that the defendant has not shown how the rule has affected its constitutional right to fair hearing, as canvassed in its preliminary objection.  

   
The defendant through its counsel, Mr. Femi Falana (SAN), had upon receipt of service of the court process, filed a preliminary objection on the ground that the provisions of Section 99 of the Sheriff & Civil Process Act (SCPA), prescribes 30 days for defendant’s appearance, and which conflicts with the provisions of the rules of Industrial Court, that provides for only 14 days.    
   
Learned Senior Advocate had urged the court to resolve the conflict in favour of the Sheriff &Civil Processes Act, which makes general provisions for all civil courts in Nigeria. He argued that the shortfall of days for defendant’s appearance to a suit in the National Industrial Court (Civil Procedure) Rules 2017 amounts to breach of fair hearing, contrary to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria (as Amended).
   
On his part, counsel for the claimant, Tonye Wilson, disagreed, contending that the objection amounts to invitation of the court to over-rules its own rules, which ought to be obeyed by litigants and the court. 
   
After considering submissions of both counsel, the Judge, held that that “a key idea of setting up of specialized court is to cloak it with specialized procedures to fast track its proceedings to ensure the realization of the very philosophy that enabled its creation. To my mind, the essence of specialized court would be defeated if the so called specialized court is still kept in and enmeshed in the shackles of old procedural rules which led to clamour for and creation of such court/tribunal. To say that a specialized court is subject to the general provisions of statute whereas it has its own specific provision on the subject matter would just amount to ‘making a distinction without a difference’’.  

Justice Ogbuanya noted that he was earlier, in the case of Yusuf Yahaya v. FRSC in suit.No: NICN/YL/06/2014, ruling of which was delivered on December 7, 2017, confronted with similar argument against the rules of the court regarding the conflict with the provisions of the sister Section 97 of the Sherriff & Civil Process Act, which required leave of court to issue and serve court processes across various states of the federation. 
 
In coming to his decision in the Yahaya’s case,  to uphold the court’s rule, the judge stated: “I took the view and held that by virtue of the extant rules of this court, no such leave is required for service of court process in-between states in Nigeria, as Industrial Court has one territorial jurisdiction throughout Nigeria.

This position was arrived at after strenuously distinguishing the Supreme Court decisions in owners of M.V Arabella v. NAIC [2008] 11 NWLR [pt.1097]182 (M.V Arabella) and Drexel Energy and Natural Resources Ltd & 2 Ors. v. Trans International Bank Ltd & Ors. [2008] 18 NWLR [pt.1119]388 (Drexel Energy).  

 
“Interestingly, in later Supreme Court cases in Akeredolu v. Abraham (2018) LPELR-44067(SC) and John Hingah Biem v SDP & 2 Ors. SC/341/2019, the effect of MV Arabella (supra), requiring leave to serve originating process across various states of Nigeria, was departed from and abolished”.
   
On the case of Emeka v. Okoroafor [2017]1WRN 1 at 100, which Falana cited to the effect that the Supreme Court had similarly struck down seven  days prescribed in the Fundamental Rights Enforcement Rules, in favour of the 30 days prescribed in Section S.99 SCPA, Justice Ogbuanya, pointed out that “facing such superior decision of the apex court, calls for closer scrutiny of the authority and the factual circumstances of the case at hand”.  
   
While distinguishing the cases he stated : “I have read a full text of the Supreme Court’s judgment in the Okoroafor’s case reported as Emeka v. Okoroafor [2017]11NWLR (Pt.1577) 410SC. Reading through the gamut of the lead judgment by my Lord, Kekere-Ekun JSC, concurred by the my Lords Mary Peter-Odili, Kumai Aka’Ahs, Chima C. Nweze and Ejembi Eko, JJSC., I am unable to find where the issue of the validity of seven days return date for defence appearance was raised and resolved in that case, which would constitute a binding precedent in this court at lower ladder of stare decisis. 
   
“Though the matter dealt with appropriate use of Fundamental Rights (Enforcement Procedure) rule, nothing was raised or resolved regarding length of period within which the defendant would enter appearance. The nearest issue that came on service of the court process relates to effect of non-service of court process on jurisdiction of court and challenge of affidavit of service by Bailiff”.
   
On the right to fair hearing under Section 36 of the Constitution which the defendant alleged that the rules of the court had infringed upon, Justice Ogbuanya did not agree, ruling that it is academic and speculative, as nothing was shown to warrant the assertion.  
   
The judge said: “I find this averment as speculative and academic, as no material or factual explanation was averred to throw more light as to how such right of fair hearing was denied the defendant. It did not show how the rule has worked miscarriage of justice in a suit that has not even yet been tried. 
   
“Paradoxically, the defendant/applicant who complained of 14 days rule within which to enter appearance and prefers 30 days has spent more than 30 days pursuing an argument to give it 30 days to appear. I find that the rule regarding appearance of defendant invariably does not affect the rule of filing defence and presenting defence at trial. 
   
“There are ample provisions in the extant rules of this court for extension of time or even setting aside judgment obtained in default of appearance or defence, which are available and aimed at ensuring fair hearing and hearing a matter on the merits. With these safeguards of fair hearing laced all over in the rules, I find no supporting basis to yield to the call by the learned SAN to tilt-down the provisions of the rules of this court regarding 14 days requirement for a defendant to enter appearance upon service of originating court processes in a suit in this court. I so hold”. The preliminary objection was accordingly dismissed and the suit set down for trial.


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