IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: March 12, 2020 Suit No: NICN/PHC/74/2014
Joseph C. Adinma ------------------------------------ Claimant/Applicant
The Shell Petroleum Development
Company of Nigeria Limited -------------------------------------Defendant/Respondent
George Ogara, for the claimant with P. C Emeana (Miss)
C. B. Sigalo for the defendant
1. On July 3, 2019; the claimant/applicant filed a Motion on Notice before the court at page 623 of the record, praying for an order for extension of the time within which to apply for re-list of this case with Suit No: NICN/PHC/74/2014 that was struck out on December 12, 2017and for an order, re-listing same before this court. The application is supported by a 15 paragraphed affidavit. Attached with this affidavit are Exhibits A1-A5, B & C. The application is also supported by a written address, see page 933 of the record.
2. Responding to the application, counsel to the defendant/respondent filed a 6 paragraphed counter-affidavit with 3 Exhibits A, B and C at page 937 of the record together with a written address at page 982 of the record.
Counsel to the claimant/applicant responded to the Counter Affidavit of the defendant/respondent by filing further affidavit and a reply on Point of Law at pages 993 to 999 of the record.
3. COURT’S DECISION
After a careful consideration of this application, the issue to resolve in my considered view is:
Whether or not this Court can re-list this case with Suit No: NICN/PH/74/2014 in its circumstance.
This application was filed pursuant, inter alia to Order 38 Rule 6 (3) of the National Industrial Court of Nigeria(Civil Procedure) Rule, 2017. This Rule provides:
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.
4. It is worthy of note that the granting or refusal of an application of this nature is at the discretion of the Court, which discretion must be exercised judicially and judiciously. This requires that the applicant must placeall necessary materials before the court to enable it decides whether the circumstance of the application is in the applicant’s favour or not; see Akpoku v. Ilombu  8 NWLR (Pt. 561) 283 at 291 paragraphs F-G per Achike JCA (as he then was).
In ground 4of this application, the claimant/applicant states that this Court has reviewed its ruling striking out this suit in its decision of 16/1/2019 on another case and so, the claimant/applicant has a right to relist this suit that was struck out on December 12, 2017. Also in paragraph 11 of the affidavit in support of this application, the deponent deposed that this Court held in Suit No: NICN/PHC/62/2018 that “the claimant/Applicant has a right to re-list this suit No NICN/PHC/74/2014”.
5. In the Ruling of this Courton January 16, 2019 on the case with Suit No: NICN/PH/62/2018; the Court held thus:
The case with Suit No: PHC/1008/2007; which was transferred to this Court was renumbered as Suit No: NICN/PHC/74/2014 when that case was received on transfer in this Court and it was regularized. However, the case was struck out by this court on December 12, 2017; a copy of the Court’s Ruling that struck out the case is at pages 278 to 290 of the record. That struck out case with Suit No: NICN/PHC/74/2014 was never re-listed by this court in line with Order 38 Rule 6(1) of NICN (CP) Rules, 2017; there is even no application for the re-list of that case, contrary to the argument of the claimant’s counsel. Instead of applying for its relist, the claimant’s counsel elected to file a new case with Suit No: NICN/PH/62/2018; which is the instant case and which is completely different from the one that was struck out and with a different suit number. In the circumstance, I find and hold that the case with Suit No: PH/1008/2007 that later was regularized and given Suit No: NICN/PHC/74/2014 and then struck out on December 12,2017 is dead and buried; neither was it revived in line with the provision of Order 38 Rule 6(1) of NICN (CP) Rule 2017. I further hold that this instant case with Suit No: NICN/PH/62/2018 is not a continuation of the one with Suit No:NICN/PHC/74/2014 but, it is a fresh suit entirely.
Please see paragraph 9 of the reproduced Ruling at pages 864 to 865 of the record.
6. In paragraph 3 of his address at page 871 of the record, counsel to the claimant/applicant submitted that the above portion of the Ruling is a review of its earlier ruling, which has conferred on the claimant/Applicant, a right to apply to Court for relist of his case that was struck out in 2017 instead of filing a fresh action as was done in suit No. NICN/PH/62/2018. I have read through the referred Ruling on NICN/PH/62/2018 over again and I find that there is nowhere inthe said Rulingwhere the Court held that the claimant/applicant has a right to apply for the relist of this instant suit that was struck out over a year before that ruling deliveredas erroneously conversed by counsel to the claimant/applicant in the instant application. Furthermore, contrary to ground 4 of the claimant’s/applicant’sapplication, I find that this Court did not review its decision of December 12, 2017 on the case with Suit No: NICN/PHC/74/2014 in its Ruling dated January 16, 2019 on the case with Suit No: NICN/PH/62/2018.
7. I reiterate on this point that all what the Court said on this issue is that: In the circumstance, I find and hold that the case with Suit No: PH/1008/2007 that later was regularized and given Suit No: NICN/PHC/74/2014 and then struck out on December 12, 2017 is dead and buried; neither was it revived in line with the provision of Order 38 Rule 6(1) of NICN (CP) Rule 2017.This reproduced portion of the rulingdoes not amount to a review of the earlier decision of this court of December 2017 and it cannot, under any guise be stretched to mean that thisCourt held that theclaimant/applicant has a right to still apply for relist of this suit regardless of the time it was struck out;particularly, considering the fundamental defectof its author of not signing the initiating processes; for which it was struck out. It is a settled position of law that no judge is allowed to reverse, vary, alter or review the order or decision of another judge of co-ordinate jurisdiction; see Adesigbin v. Military Governor of Lagos State  10 NWLR (Pt. 1574) 442 at 460 paragraphs A-B, per M.D. Muhammad JSC.
8. It is very unfortunate that counsel to the claimant/applicant is either not conversant with the provisions of theRules of this Court or that he deliberately decided to module up the principles of law on relisting of a struck out case to irritate or confuse this Courtbyfiling this application;relying on the Ruling of this Court delivered on January 16, 2019 on another case with Suit No: NICN/PH/62/2018 that has no bearing with the instant case as the basis forthis application.
9. Secondly in paragraph 7 of the affidavit in support of the instant application, the deponent deposed thus:
7a. that the deponent/applicant having raised the issue of jurisdiction of Writ of Summons in Suit No: PHC/1008/2007 before the High Court of Rivers State of Nigeria in the Motion on Notice filed on 2/11/2012and succeeded therein, the defendant/respondent is not entitled to raise the issue of jurisdiction of Writ of Summons again before this Honourable Court.
b. That the defendant/respondent raising of the issue of jurisdiction and validity of the Writ of Summons in PHC/1008/2007 for a second time led to striking out of this suit by Auwal-Ibrahim.J
c. That the piecemeal approach to the issue of jurisdiction adopted by the defendant/Respondent led to the striking out of the suit
10. Counsel to the claimant/applicant did not address the court on paragraph 7(a) to (c) of the affidavit in support of his application.It is worthy of note that, contrary to the deposition in paragraph 7(a) of the affidavit in support of this application; the issue of jurisdiction of Writ of Summons in Suit No: PHC/1008/2007 before the High Court of River State of Nigeria in the Motion on Notice filed on 2/11/2012 in Exhibit A at page 631 of the record was raised based on the provision of section 254C of the National Industrial Court of Nigeria (Third Alteration) Act, 2010 which vests jurisdiction on this court.Besides, counsel needs to remember that it is trite that when a case is transferred from one court to another as it is in the instant case, the proceedings starts de novo; see the case of SPDC Nig. v. Etekoh  LPELR – 5027CA. Also contrary to the applicant’s deposition in paragraph 7(b) of the affidavit in support of this application;in Exhibit B at page 842 of the record, the ground for the challenge of jurisdiction of the Court was on non-compliance with Order 6 Rule 1 of the High Court of Rivers State (Civil Procedure) 2006 and Order 6 Rule 1(1) & (2) of the National Industrial Court Rules, 2007; and also that the originating processesare in competent.
11. The law is that Jurisdiction of a Court is a very fundamental issue and so, it should be determined at the earliest stage of the proceedings; because, if a court has no jurisdiction to hear and determine a case, its proceedings on that case remain a nullity ab-initio; no matter how well conducted and decided, see the case ofAnyanwu v. Ogunewe 8 NWLR (Pt. 1410) SC 437 at476 paragraphs G-H. It is also trite that there is no time limit to when the issue of jurisdiction can be raised in Court as same can even be raised on Appeal at the Supreme Court for the first time without leave and orally. See A.G.of Abia State v. Phoneenix Environmental Services Nigerian Ltd.  LPELR – 25702 (CA)
12. In his reply on point of law, counsel to the claimant/applicant referred the court to section 24(2) of the National Industrial Court Act, 2006 and submitted that this court has no power to strike out matter transferred to it by the High Court of Rivers State. It is my considered view that counsel to the claimant/applicant misconceived the provision of section 24(2) of the National Industrial Court Act, 2006 as same is only applicable to a court that does not have competent jurisdiction to hear and determine the subject matter of the case brought before it. By section 254C of the NICN (Third Alteration Act, 2010) this court is competent to hear and determine the subject matter of this case, provided that same is instituted by due process of law; I so find and hold.
13. However, the question to consider in this application is based on the ground upon which this case was struck out,whether this court can exercise its discretion to relist same?
At page 971 of the record, the decision of this Court on December 12, 2017 statesinter alia:
---there is merit in the preliminary objection of the Defendant as the writ of summons which initiated this suit was not duly signed in accordance with the provision of Order 6 Rule 2 (2) and (3) of the High Court of Rivers State, 2006. The consequence of this is that there is a fundamental defect which goes to the root of the jurisdiction of the Court to entertain and hear the Suit as has been stated in numerous decisions. --- Consequently, there is no validly constituted suit before the Honourable Court. It must be and is hereby struck out ---.
14. As quoted above, this instance suit was struck out in December 2017 on ground of fundamental defect that goes to the root of this Court’s jurisdiction on the case. Consequently, I hold thatthe exercise of this Court’s discretion of re-listing this case as prayed by the applicantwill not cure or remove itsfundamental defect as shown above. I further hold that this application lacks merit, it is irritating, annoying and a clear waste of the precious time of this Court; it is accordingly refused and dismissed. The claimant’s/applicant’s counsel is to pay N250,000.00 cost to the defendant’s/respondent’s counsel.
Ruling is entered accordingly.
Hon. Justice F. I. Kola-Olalere