Court Upholds Rule On 14–Day Appearance For Defendants

Justice Nelson Ogbuanya of the National Industrial Court, Port-Harcourt Division, has upheld the 14-day appearance rule for a defendant as contained in the court’s Civil Procedure Rules.

Dismissing a preliminary objection by Provita Vitaforce Foods Nigeria Ltd in a suit by Kassem Tay, numbered NICN/PHC/392019, the judge held that the 14 days required for the defendant to enter an appearance is valid.

According to him, it is the provision of the Rules of a specialised court, and that the defendant did not show how the rule affected its constitutional right to a fair hearing, as canvassed in the preliminary objection.

The defendant through its counsel, Femi Falana (SAN), had filed the preliminary objection on the ground that the provisions of Section 99 the Sheriff & Civil Process Act (SCPA) prescribes 30 days for the defendant’s appearance.

He argued that it conflicts with the provisions of the Rules of Industrial Court, which provides for only 14 days.

The 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 added that the shortfall of days for a defendant’s appearance to a suit in the National Industrial Court (Civil Procedure) Rules 2017 amounts to a breach of fair hearing, contrary to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria (As Amended).

Counsel for the claimant, Tonye Wilson, disagreed, contending that the objection amounts to inviting the court to over-rule its Rules, which ought to be obeyed by litigants and the court.

After considering submissions of both counsel, Justice Ogbuanya held: “A key idea of setting up of specialised court is to cloak it with specialised procedures to fast track its proceedings to ensure the realisation of the very philosophy that enabled its creation.

“To my mind, the essence of specialised court would be defeated if the so-called specialised 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 specialised 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 in the case of Yusuf Yahaya v. FRSC (Suit No: NICN/YL/06/2014, of which ruling was delivered on December 7, 2017), he was confronted with a similar argument.

In coming to his decision in the Yahaya 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 the originating process across the various states of Nigeria was departed from and abolished.”

On the right to a 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.

He ruled that it was academic and speculative, as nothing was shown to warrant the assertion.

“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 an 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 the 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 an extension of time or even setting aside a 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”.

Justice Ogbuanya dismissed the preliminary objection and set the suit down for tria