IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HONOURABLE JUSTICE K.D.DAMULAK
ON THURSDAY THE 23RD DAY OF MAY, 2019
SUIT NO: NICN/ABJ/17/2019
VICTOR .E. UYO ………… CLAIMANT/APPLICANT
THE NATIONAL UNIVERSITIES COMIISION…..DEFENDANT/RESPONDENT
I.M. Ebikwo Esq. for the claimant/applicant
No representation for the defendant/respondent
This ruling is predicated upon a motion on notice dated and filed on 3/4/2019 by the claimant/applicant seeking for an order of this court re-opening the case of the claimant which was closed on the 7th March 2019. The grounds of the application are that there were some documents but we were unable to Point out the particular paragraph on that day and that there were other documents that we could not lay our hands on before the 7th March 2019 which we now have. The defendant/respondent was served on 1/4/2019 but did not file any counter affidavit.
STATEMENT OF RELEVANT FACTS
The claimant filed a complaint against the defendant in this court on 25/1/2019 and same was served on the defendant on 28/1/2019 but have not filed any process in this court, not even a memorandum of appearance. The defendant was served with hearing notice on 26/2/2019 for 7/3/2019 but did not come to court. The claimant testified on the said 7/3/2019 as his sole witness. At the conclusion of his evidence, rather than ask for judgment in line with Order 9 Rule 5(1) and order 3 Rule 2 of the 2017 Rules of this Court, claimant’s counsel asked for a date for the cross examination of the witness and court, rather inadvertently, adjourned the matter to 8/4/2019 for cross examination. The defendant was served with a hearing notice on 7/3/2019 for 8/4/2019 but did not appear either. On the said 8/4/2019, this motion was heard, same having been served on the defendant/respondent on 1/4/2019.
CASE OF THE APPLICANT
In the brief affidavit in support, the claimant /applicant repeats the ground of the application. In the written address in support, the whole written address of counsel reads thus;
“It is our submission that this court has an unfettered power to grant application. In every application, the Court has discretion to grant, or not. We urge the Court to exercise its discretion in favour of this Application. The Rules of this Court enjoins the Court to do Justice. We urge this court to grant this Application in the interest of Justice as the submission of these documents will lead the Court to the Justice of the case”.
As earlier observed, the claimant was entitled to ask for judgment upon his testimony but opted for an adjournment or cross examination even when the defendant did not file any process in court to indicate its intention to defend this suit.
This motion is simply brought pursuant to order 17 of the Rules of this court which simply provides that motions should be on notice. Counsel did not deem it necessary to indicate which Order in the Rules of court that entitles him to bring an application of this nature.
Another worrisome feature of this case is the failure of the applicant to indicate or identify the documents that were pleaded and listed but which were not tendered.
Discretion of court is to be exercised both judiciously and judicially. Counsel has failed in his duty, as a minister in the temple of justice, to aid the court to arrive at a judicial discretion. Be that as it may, this court will not abdicate its duty on that basis.
I have taken the pains to look at the processes of the claimant as filed before this court I find that the claimant listed 27 documents to be relied upon. I have equally looked at the records of proceedings and found that the claimant only tendered 20 documents marked as exhibits VEU1 to VEU20. This gives support and renders believable the fact that some documents were not tendered for one reason or the other and it will serve the interest of justice to allow the claimant the opportunity of tendering those documents in evidence.
Furthermore, Order 38 Rules 29 and 31 of the Rules of this Court allows the applicant to bring an application of this nature.
I find merit in the application, the motion succeeds and the prayer is granted.
The case of the claimant is hereby reopened to enable him tender documents which he could not tender them earlier.
This is the ruling of the court and it is entered accordingly.
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA