IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDCIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 5TH NOVEMBER, 2019 SUIT NO:NICN/CA/32/2017
MR JAMES EDET ………… CLAIMANT/APPLICANT
1. PARAMOUNT FROZEN FOOD LTD DEFENDANTS/RESPONDENTS
2. ADEDEJI EMMANUEL
SUNDAY OTU Esq. for the Claimant
ABIBOLA OLUFUNKE OSINUBI (MISS) Esq. for the Defendants
R U L I N G
This is the ruling of the Court on the Motion on Notice by the Claimant/Applicant dated 29th January, 2019 and filed 30th January, 2019. The Application is brought pursuant to Sections 122, 169, 229, 232, 233 & 235 of the Evidence Act, 2011; Rules 27(1)(2)(a)(b) of the Rules of Professional Conduct for Legal Practitioners, 2007; Orders 48 Rule 7; Order 17 Rule 1, 6, 17 & 19; Order 58 Rule 14 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 Rules, and under the inherent jurisdiction of this Honourable Court. The Claimant/Applicant prays the Court for the following:
1. AN ORDER of this Honourable Court rectifying/correcting the Record of Proceedings in this suit to reflect the true occurrence and the sequence of events during hearing by the harmonization and inclusion of vital missing contents by taking this Application in Chambers
2. AN ORDER of this Honourable Court expunging from the record the evidence of Mr Isaac Omegba who absconded from further cross examination
3. AN ORDER of this Honourable Court taking judicial notice of Emmanuel Adedeji’s averment in his Witness Statement on Oath in NICN/CA/24/2018 that is inconsistence with his evidence during cross examination of 10thOctober, 2018 in NICN/CA/32/2017 as to his status as Branch Manager and Store Keeper
The last prayer is the omnibus prayer.
The grounds for the Application are:
1. The record of proceedings of this Honourable Court has discrepancies between the Court’s Records and the correct state of what really transpired in Court during the trial of this suit as recorded by the Claimant’s Counsel.
2. The Record of Proceedings as evidenced by the Certified true Copy is incomplete as certain vital information are conspicuously missing or omitted from the record
3. Reliance cannot be placed on incomplete, disputed and contradictory Record of Court to write a final written address as that will create confusion, produce absurdity and occasion miscarriage of justice on the claimant
4. Mr. Isaac Omegba’s evidence will not assist this Honourable Court in the dispensation of justice and not serve any useful purpose in this case
5. Mr Isaac Omegba is not an expert witness and he is a false and tainted witness procured to mislead this Honourable Court by telling lies and giving perjured evidence and made him run away as he could not withstand the fire of cross examination
6. Mr Isaac Omegba ran away from further cross examination without any lawful excuse. Hence, allowing or using his testimony will be overreaching to the Defendants to the detriment and prejudice of the Claimant.
7. Mr Emmanuel Adedeji as a witness before this Honourable Court lied on oath when he claimed to be the Manager of the 1st Defendant in NICN/CA/24/2014 but under cross examination he denied being a Branch Manager but said he is a Store Keeper in NICN/CA/32/2017 which amounts to offence of perjury contrary to Section 191 of the Criminal Code
8. The matters in paragraph 7 above are part of the Records of this Court and processes of the Defendants for which this Court has in its custody as public documents to which it can have recourse and take judicial notice in resolving this suit being part of what took place on the 10th of October, 2018.
In support of the Application is a 5-paragraph affidavit deposed to by one Owu Joseph who identified himself in no other words than I am the deponent on record and by virtue of my position I am conversant with the facts deposed to in this Affidavit. Documents were attached as Exhibits in support of the Application and a written address in compliance with the rules of this Honourable Court.
The gist of the affidavit in support of this Application is that sometime in November, 2018, Counsel to Defendants served Counsel to Claimant/Applicant a copy of their final written address. On going through the final written address of the Defendants, Claimant’s Counsel discovered misleading and malafide contents in the Defendants’final written address. This prompted him to apply for certified true copy of the Records of Proceedings of the Court. On receiving the Records of Proceedings from the Court, Claimant’s Counsel discovereddiscrepancies between the Court’s Record and the correct state of what really transpired in Court during the trial of this suit. This has prompted this Application.
CLAIMANT/APPLICANT’S WRITTEN ADDRESS.
In Applicant’s written address dated 29th January, 2019 and filed 30th January, 2019, Learned Counsel on behalf of Applicant formulated four (4) issues for determination:
1. Whether this Honourable Court has the requisite powers to correct/rectify its own records of proceedings
2. Whether this Honourable Court is vested with the powers to expunge certain evidence from its record
3. Whether the conduct of Counsel to the 1st and 2nd Defendants amounts to professional misconduct
4. Whether this Honourable Court can take judicial notice of previous evidence in subsequent proceedings.
ON ISSUE 1:Whether this Honourable Court has the requisite powers to correct/rectify its own records of proceedings
Learned Counsel to Claimant/Applicant submitted that the Court has the inherent power to correct or rectify its own record in the interest of justice. That in Ika Local Govt Area V. Mr Augustine Mba (2007) 12 NWLR (Pt. 1049) 676 the Court held that the Court has inherent jurisdiction for doing any act in any given case in order to avoid injustice to the parties. He also relied on Order 38 Rules 30 &31 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which provides:
The Court may suo moto on or before the date fixed for judgment order or direct either party to the case to address it on any issue requiring further clarification for the fair trial of the case. Upon being satisfied with the grounds on which the Application is made, and where the Court deems it fit in the interest of justice and fair trial to do so, the Court shall grant leave to the party to reopen the case for the purposes of clarifying the point of law and/or presenting the additional evidence as contained in the Application to the Court.
Learned Counsel therefore urged the Court to resolve this issue in favour of the Applicant.
ON ISSUE 2:Whether this Honourable Court is vested with the powers to expunge certain evidence from its record
Learned Counsel submitted that by virtue of Section 251 of the Evidence Act, 2011, this Court has the power to exclude from its record evidence that is false and tainted.
ON ISSUE 3: Whether the conduct of Counsel to the 1st and 2nd Defendants amounts to professional misconduct
Learned Counsel submitted that the action of the Defendant’s Counsel in objecting to documents tendered by the Claimant when she had earlier said she would not be objecting to such but will address the Court on it at final address stage made him not to lay proper foundation for the tendering of such documents. Counsel submitted further that by turning around to say in Defendant’s Final written address that proper foundation was not laid before tendering the documents is a breach of the rules of professional conduct by Counsel to Defendants especially after she promised not to object to the tendering but to address the Court on the weight to be attached to same at the final address stage. According to Counsel to the Claimant, it is thispromise by Defendants’ Counsel that she would not object that made him not to lay proper foundation for the tendering of such documents. That Rule 27(1) of the Rules of Professional Conduct for Legal Practitioners 2007 provides as follows:
A lawyer shall observe good faith and fairness in dealing with other lawyers
(2) without prejudice to the generality of sub rule (1) of this rule, a lawyer shall –
(a) Observe strictly all promises or agreements with other opposing lawyers whether oral or in writing and whether in or out of Court, and shall adhere in good faith to all agreements implied by the circumstances of the case
(b) where he gives a personal undertaking and does not expressly or clearly disclaim personal liability there under, honour his undertaking promptly.
It is the submission of Learned Counsel to Claimant that the actions of Counsel to Defendants runs foul of the above rule.
ON ISSUE 4: Whether this Honourable Court can take judicial notice of previous evidence in subsequent proceedings.
Learned Counsel submitted that the affidavit of DW2 in NICN/CA/24/2014 is in the record of this Honourable Court and the Court has the power to take judicial notice of same. He relied on Order 40 Rule 21 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 which provides:
Subject to the provision of Section 46 of the Evidence Act 2011, all evidence taken at the hearing or trial of any cause or matter may be used in subsequent proceedings in the same cause or matter.
He therefore urged the Court to resolve this issue in favour of the Claimant/Applicant.
In opposition to Claimant’s Application, Defendants, through one Edet Udo, deposed to a 4-paragraph counter affidavit on 11th March, 2019 with a written address in compliance with the rules of this Honourable Court.
The gist of Defendants’ affidavit in opposition to Claimant’s Application is that unlike what the Claimant stated, there is nothing misleading in the content of Defendants’ final written address. The records exhibited as his records do not tally with what happened in Court at the trial. That between their record (Defendants) and the record of the Court, the only thing they noticed the Court did not record is the part where PW1 after stating that a standard room in Odukpani with toilet go for N6000 stated, ‘…..without toilet and bathrooms that we occupy go for N4000 per month’. That the Court did not capture the part where PW1 stated ‘without toilet and bathrooms that we occupy go for N4000 per month’. The Defendants’ record, besides this, is substantially the same with that of the Court. That Claimant’s Application constitutes abuse of Court process and intended to protract proceedings in this suit.
DEFENDANTS’WRITTEN ADDRESS IN OPPOSTION TO CLAIMANT’S APPLICATION
In Defendants/Respondents’ written address, Learned Counsel on behalf of Defendants formulated two (2) issues for determination:
1. Whether this Honourable Court should grant the reliefs sought by the Claimant/Applicant in the Motion on Notice dated 29th day of January, 2019
2. Whether the instant Motion does not constitute abuse of Court process
Learned Counsel to Defendants/Respondents submitted that there was nothing in the affidavit in support of this Application stating what was omitted, and the discrepancies complained of by Counsel. That this Application is intended to insult the Court and frustrate this case from proceeding further.
Learned Counsel submitted further that Court’s record is, by law, presumed correct until the contrary is proved. He relied on Dantiye V. Kanya (2009) 4NWLR (Pt.1130) P.13 @21, 40 – 41. That also, in Uko & Anor V. Stemco Ltd (2018) LPELR – 44873 (CA), it was noted that a challenge of the record of a Court is not taken lightly as it impugns the integrity and competence of the judge.
Learned Counsel submitted that there is a procedure for challenging the record of proceeding of a Court and the first stage is for Counsel himself to depose to an affidavit himself and in addition, annex as exhibit, his own handwritten proceedings of the particular day and serve same on the judge for his reaction. He referred the Court to Mba V. Nwosu (2008) 3NWLR (Pt.1074) P.329 @332, 338. The affidavit must be served on the judge who may decide to exercise his right to defend himself. He referred Court to Daramola V. AG Ondo (2000) 7NWLR (Pt.665) 440 @462 – 263, and Mela V. Ciniki (2016) LPELR – 40769 (CA) where the Court held:
The law on the procedural requirements and steps necessary to be taken by a party who intends to challenge the record of any Court’s proceeding have been well settled and it is that a party who intends to challenge the record of proceedings must file an affidavit challenging the record of proceedings of the Court. The affidavit when filed shall be duly served on the Court and Judge whose record is being challenged. Upon service on the Court and the Judge, it is left for the Court and the Judge to file, if they so desire to contest the challenge to their record of proceedings, a counter affidavit debunking the challenge or an affidavit accepting the particulars of the challenge to their record as pointed out by the party so challenging the record of proceedings.
Learned Counsel submitted that Claimant’s Counsel failed to strictly adhere to the procedure as stated in the cases above. In Onwuka V. Ononuju (2009) 11NWLR (Pt. 1151) 174, the Supreme Court held:
To state simply that the record of proceedings are defective without more is not enough; it must be clearly indicated in the Application the true proceedings what is missing and what is surplusage must be indicated.
It is the submission of Learned Counsel that in the Application herein, the affidavit was not deposed to by Counsel to Claimant himself; Counsel did not state what is missing or wrongly stated in the proceedings that he now intends to correct, therefore, Counsel failed to follow the proper procedure in bringing this Application.
On the evidence of Mr. Omegba and Mr Emmanuel Adedeji, Learned Counsel submitted that the duty of Court to evaluate evidence and determine which one to expunge, rely on or disbelieve is carried out when the Judge is writing judgment. He relied on Igbodim & Ors V. Obiake & Ors (1976) LPELR – 1448 (SC)
Learned Counsel therefore urged the Court to dismiss the Application of the Claimant with cost.
Having gone through the Application, affidavit with exhibit attached in support as well as Learned Counsel’s submission, this Court has distilled a sole issue for determination, to wit:
Whether given the circumstances, there is merit in this Application.
The total reliefs sought by the Claimant/Applicant in this Application are three (3) besides the omnibus prayer. Given the circumstances of Relief 2 & 3, this Court is not minded to comment on same being that they are matters if decided upon at this interlocutory stage, will preempt the decision of the Court in the substantive suit. The Court has been cautioned severally not to determine a substantive suit by way of an interlocutory Application. In this sense, the arguments of Counsel on expunging evidence, believing and disbelieving a witness, keeping of promises and breaking of promises by Counsel on the other side are matters that should reflect in Claimant’s final written address and not matters to be accommodated in an interlocutory Application coming at a time parties have closed their respective cases. In this light, the Court will proceed to strike out prayer 2 and prayer 3 on the Motion paper dated 29th January, 2019 and filed 30th January, 2019. Consequently, Prayer 2 and Prayer 3 of the said Motion are hereby struck out.
On prayer 1, this Court wishes to state that this is a sensitive matter which the Court has gone ahead to establish a procedure to curtail bad blood between the Applicant and the Court. The first stage of that procedure is for the Applicant himself (that is Counsel alleging error in the record of proceedings of the Court) to dispose to an affidavit himself stating and particularizing the alleged error which was omitted, committed or distorted. See Mba V. Nwosu (2008) 3NWLR (Pt.1074) P.329. I have gone through the affidavit of the Applicant, I noticed that the person who deposed to the affidavit is not the Counsel himself but somebody called Awu Joseph who did not identify himself but only stated I am the deponent on record. Whatever that means, this does not only offend the law on affidavit but fails to conform to the procedure required for this kind of Application.See Section 117(1) of the Evidence Act, 2011 which provides thus:
(1) Every affidavit taken in a cause or matter shall--
(a) be headed in the court and in the cause or matter:
(b) state the full name, trade or profession, residence, and nationality of the deponent:
(Underlining mine for emphasis)
See also Datinye V. Kanya (2009) 4NWLR (Pt.1130) P.13.
In the Application herein, I can hardly figure if the words I am the deponent on record is the trade, occupation or profession of Awu Joseph who deposed to the affidavit in support of this Application. From the record of this Court, Counsel who is saying there is error in the records of proceeding is Sunday Otu Esq. I must pause here to say that even though Counsel to Claimant prefers the name ‘Divine Greatness Esq.’ the NBA stamp on the process before me bears Sunday Otu Esq. In this regard, I will prefer to call him by his formal name Sunday Otu Esq. as long as there is no evidence before me that his change of name has been effected at the Supreme Court and at the Nigeria Bar Association (NBA). Now, as earlier mentioned, the Counsel alleging error in the record of proceedings of the Court is Sunday OtuEsq. In this regard, he is the only person legally fit to depose to and sign the affidavit in support of this Application and no other.
Furthermore, there is nowhere in the affidavit that the error, omission or commission or distortion complained about was particularised. Rather, the Applicant attached a copy of the Certified Copy of the record of the Court and a copy of what he alleged to have recorded during the proceedings. Granted, Applicant attached Exhibits B, C and D which are Claimant’s Counsel record of what transpired in Court on the said days. Besides the fact that Applicant did not highlight the parts he wants the Court to correct in its own record from what he attached as his own record, Applicant fails to tell the Court who and who recorded the proceedings attached as exhibits giving the disparity in the handwritings in the said documents of the Claimant/Applicant.
The Court, after painstakingly going through the Application, exhibits attached, written submissions of the Applicant as well as given the analysis above, the only conclusion I can arrive at is that the object of this Application and Prayer 1 of this Application is that the Applicant wants the Court to jettison its record of proceedings and substitute it with that of the Applicant. Be that as it may, the records of Court have always been the superior records and when there is conflict between the record of the Applicant and the Respondent, that of the Court is most superior and most acceptable. Maybe one day, and I say one day, perhaps the kind of advocacy herein portrayed by Counsel to the Claimant, if he so persists up to the Supreme Court, perhaps he may be able to persuade the Supreme Court into holding that Counsel’s record supersedes Court record. Until then, Claimant’s Counsel should restrain himself from the kind of advocacy that can only be excused if propagated by non-lawyers.
From all that have been said above, this Court finds and I so hold that there is no merit in this Application.
I must quickly add that if as at the day of this ruling Claimant is yet to file their final written address to Defendants’final written address, whenever Claimant wakes up to the fact and reality that Defendants have served them their final written address, Claimant should also know that their time to respond started from the time he was served with Defendants’final written address and not the date of this ruling.
In all, Claimant/Applicant’s Application fails and same is hereby dismissed.
Ruling is entered accordingly.
HON. JUSTICE M.N ESOWE