No need for affidavit where objection is strictly predicated on Law- Industrial Court Rules
Hon. Justice Zaynab Bashir of the Portharcourt Judicial Division of the National Industrial Court has dismissed the preliminary objections filed by Plantgeria Company Limited and Trustfund Pensions Limited challenging the jurisdiction of the court to hear and determine the case brought by Mr Ulokanjo Emmanuel and 3 others suing for themselves and on behalf of the former Automobile drivers employed by Plantgerai Company Limited from 2006 to 2008 for lacking merit.
The Court held that there is no need for a supporting affidavit where the preliminary objection is predicated strictly on law, and the involvement of the Trustfund Pensions is not only necessary but crucial and unavoidable for the effective and effectual adjudication of the claim for pension sought by Mr Ulokanjo Emmanuel and 3 others.
Mr. Ulokanjo Emmanuel and 3 others had sought leave to expunge all evidence of one witness given in the matter and pleaded the witness to re-enter the Witness Box and re-testify by reason of the new cogent and compelling facts and evidence as contained in the already Amended Complaint and all its accompanying processes duly filed and duly served on the Defendants in this matter.
In defense, the 1st Defendant Plantgeria Company Limited filed a notice of preliminary on the ground that Mr Ulokanjo Emmanuel and 3 others’ Motion indicates an intention to re-litigate or commence the case afresh and urged the court to dismiss the motion.
Counsel added that an amendment, once granted, only enables new facts to be in evidence before the Court and never meant to re-litigate the evidence already before the Court that the Counsel has concluded the Examination in-chief of the witness, cross-examined and was discharged from the Witness Box.
In addition, the 2nd Defendant- Trustfund Pensions Limited also filed a notice of preliminary objection, urging the court to strike out the suit on the ground that the matter is not properly constituted, as the claims of Mr. Ulokanjo Emmanuel and 3 others cannot be brought in a representative capacity, and there is no cause of action against the pension administrator.
In opposition, Counsel to Mr. Ulokanjo Emmanuel and 3 others submitted that the notice of preliminary objection filed by the defendant is defective for not being supported by an affidavit and that the application failed to show under which Act or Law the said application was made.
In a well-considered ruling, the Presiding Judge, Justice Zaynab Bashir held that where a preliminary objection deals strictly with law, there is no need for a supporting affidavit, but affirmed that the notice of preliminary objection of Plantgeria Company was accompanied by a counter affidavit and written address instead of an affidavit which is not only an aberration but a strange, irregular and bizarre procedure alien to law and civil procedure.
Justice Zaynab dismissed the Plantgeria Company preliminary objection for lacking merit and held that withdrawal of evidence of claimant’s witness 1 in the circumstances of the case does not amount to re-litigation or abuse of court process that a counsel in a matter who filed a process is free to withdraw same that no Court can compel a party to utilize a process he filed but desires to withdraw.
On the Trustfund Pensions argument that the benefits claimed by Mr. Ulokanjo Emmanuel and 3 others have distinct features, the court held that such an argument is a substantive issue that requires different elements that must be proved, and a substantive issue is not determined at this stage of the proceedings but during judgment.
Justice Zaynab ruled that Trustfund Pensions Limited is a necessary party for the effectual, effective and complete determination of this case, and dismissed its objection in its entirety for being unmeritorious.
