IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA

 

DATE: 27^TH APRIL, 2026                                 SUIT NO: NICN/PHC/82/2021

 

BETWEEN

DANIEL AJULIBE BENJAMIN ………………… CLAIMANT/APLLICANT

AND

TENARIS GLOBAL SERVICES NIG. LTD…. DEFENDANT/RESPONDENT

REPRESENTATION:

P.O. Allison holding the brief of Bimbo Atilola Esq. for the Claimant/Applicant.

C.J. Udeh Esq. for the Defendant/Respondent.

 

RULING

Introduction:

1.   This is a Motion on Notice dated the 20^th day of November, 2023 brought pursuant to paragraph 7 of the National Industrial Court Practice Direction and Guidelines for Court sitting, 2020; Order 17 Rule 1 of the National Industrial Court (Civil Procedure) Rule, 2017 and under the inherent jurisdiction of this Court praying whereof for the following:

i.    An Order of this Court granting leave that the instant suit be heard virtually through the use of zoom or such other convenient virtual room as this Court may direct.

ii.   An omnibus prayers.

2.      It is supported by a 6 paragraphs Affidavit and also accompanied by a Written Address dated the same date. Wherein the Learned Counsel formulated a sole issue for determination to wit:

Whether in the circumstances of this case, the Claimant is entitled to an order granting leave that the instant suit be heard virtually.

3.     Learned Counsel submitted that the law is settled that Practice Directions made by the President of the National Industrial Court operates generally to guide the court on the way and manner proceedings may be conducted. Citing Section 254(f) of the 1999 Constitution (As Amended) which provides thus:

“Subject to the provisions of any Act of the National Assembly, the President of the National Industrial Court may make rules for regulating the practice and procedure of the National Industrial Court.”Also, NWANKWO & ORS, V. YARADUA & ORS. (2010) 12 NWLR (PT. 1209) 518(SC); LONG JOHN & ORS V. BLAKK& ORS. (1998) 5 SC 83: DUKE V. AKPABUYO L.G. (2005) 19 NWLR (PT. 959) 130 AT142-143, AFRIBANK (NIG.) PLC V. AKWARA (2006) 5 NWLR (PT. 974) 619; AND OMEREGIE V. EMORON (1982) 6 SC.

4.     Similarly, it was submitted that the Supreme Court in the case of UNIVERSITY OF LAGOS V. AIGORO (1984) 11 SC 152 at 159 Practice Directions were described as:

"...a direction given by the appropriate authority stating the way and manner a particular rule of Court should be complied with, observed or obeyed. It concerns and regulates the way and manner a particular rule of Court shall be complied with or adhered to."

5.      Counsel further submitted that Paragraph 7 of the National Industrial Court Practice Directions 2020 allows this Court to hear matters virtually. More particularly, paragraph 7(5) confers on the Court the power to conduct trial and take witnesses orally and to grant orders necessary for the administration of justice. Moreso, the motion was brought under the inherent powers of this Court. Citing the case of ERISI V. IDIKA (1987) LPELR (1160) 1 AT 29-32, where the Court defined "Inherent powers of the Court" as powers of the Court which are reasonably necessary for the administration of Justice in the Court.

6.     It was also posited that, in COVALENT OIL & GAS SERVICES LTD & ANOR. V. ECOBANK (NIG) PLC & ANOR (2021) LPELR-5339 1 (CA), the Court of Appeal noted that inherent powers of the Court are those innate powers invoked by the Court to ensure the smooth running of the machinery of justice in order to curtail abuse, and stamp its authority where necessary. They have constitutional backing in Section 6(6)(a) of the 1999 Constitution, as amended.

7.     Counsel argued that, the use of video-conferencing for virtual hearings has become an indispensable part of court proceedings as it provides a convenient avenue for the administration of justice, especially when the Claimant/Applicant has relocated to Canada. Hence, the Claimant/Applicant, in his Affidavit, has presented compelling reasons for seeking a virtual hearing, considering the Applicant's relocation to Canada. It is in the best interest of justice and the convenience of all parties involved that this matter be heard virtually.

8.     In reaction, the Defendant/Respondent filed a 23 paragraphs Counter affidavit with two [2] annextures dated the 4^th day of December, 2023 and also accompanied by a written address dated the same date. Wherein, the         Learned Counsel formulated a sole issue for determination to wit:

Whether the Applicant has placed sufficient materials before the Court for the grant of this application.

 

9.     It was submitted that the Applicant has not placed sufficient materials before this Honourable Court for the grant of this application. Although, it is indisputable that the President of the National Industrial Court ("NIC") has the powers to make Practice Directions and indeed made the National Industrial Court of Nigeria Practice Directions and Guidelines for Court Sitting 2020 (2020 Practice Directions"). However, 2020 Practice Directions is not made to regulate court proceedings at the NIC in a manner adverse to the provisions and prescriptions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The 2020 Practice Directions is made to regulate proceedings in a manner that will minimize the risk of transmission of the Coronavirus (COVID-19)

10.   Counsel argued that the Applicant has not stated that because of the Covid-19 pandemic, there are travel restrictions that prevent him from coming to Nigeria to testify in this suit or that he has contracted COVID-19 and so it will be medically unsafe for him to come physically to testify in the suit in order not to transmit the virus to other persons in the courtroom. Hence, the Applicant has not satisfied the requirement under the 2020 Practice Directions to warrant the exercise of the Court's discretion in his favour in the determination of this application. Citing Paragraph 7 (2) of the 2020 Practice Directions which provides that:

“As much as practicable and with a view to encourage and promote Virtual Court sitting (alternatively referred to as "remote court sitting" or "online Court sitting"), all matters that do not require taking of evidence shall be conducted via remote hearing. All Judgments, Rulings and directions may be delivered and handed down by the Court in and through remote Court sittings.”

11.   It was argued further that by the provisions of paragraph 7 (2) of the 2020 Practice Directions reproduced above, this suit cannot be heard virtually because the suit requires the taking of evidence. Therefore, it was suggested that since there is another witness, Doris Paul-John, who is testifying on behalf of the Applicant in the suit; the Applicant's statement on oath contains almost the same facts as Doris Paul-John's statement on oath; the Applicant's case can be conveniently heard with the testimony of Doris Paul-John alone especially since Doris Paul-John's testimony is almost similar to that of the Applicant. Citing the case of CLEMENT UGOUNZEE V. THE STATE (1998) 5 NWLR (PART 551), PAGE 550, PARAS. G-H, where the Supreme Court held thus:

"A Court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side to succeed. What is primarily relevant is the quality of the evidence adduced before the Court."

COURT'S DECISION

12.   From the application, the Claimant/Applicant is seeking for an Order of the Court to permit the virtual hearing of this suit, specifically for the purpose of taking his oral testimony who has now relocated to Canada. While the Defendant/Respondent filed a 23 paragraphs Counter Affidavit in opposition to the Motion for Virtual Hearing.

13.   I have painstakingly gone through the application, the Affidavit in support of the Counter Affidavit as well as the written arguments of both parties and the Court hereby distilled the following issues for determination as they are the thrust of action. Other ancillary issues may be subsumed in the determination of these issues to wit:

i.       Whether the National Industrial Court of Nigeria has the legal authority and jurisdiction to conduct proceedings virtually under the 2020 Practice Directions;

ii.      Whether the Claimant's relocation to Canada constitutes sufficient material to warrant the exercise of the Court's direction to grant a virtual hearing.

14.   On the issue No. 1, it is within the contemplation of the Claimant that the President of the National Industrial Court has the constitutional power under Section 254(1) of the 1999 Constitution to make Rules regulating the Practice and Procedure of the Court. Similarly, Practice Directions issued by the Court's President are legally equivalent to Rules of Court. Citing NWANKWO & ORS VS YARADUS & ORS (Supra).

15.   The Respondent on the other hand, argued that the 2020 Practice Directions were specifically designed to minimize Covid-19 transmission risks and ensure access to justice during the Pandemic. Furthermore, he asserted that according to paragraph 7(a) of the 2020 Practice Directions, virtual hearings are intended for matters that do not require the taking of evidence. Whereas, this suit involves evidence taking, making it unsuitable for a remote hearing.

16.   It is imperative to state categorically clear that the National Industrial Court of Nigeria possesses the requisite legal authority and jurisdiction to conduct virtual proceedings. This authority is derived primarily from Section 254(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which empowers the President of the Court to make Rules for regulating the Practice and Procedure of the Court. Pursuant to this constitutional mandate the National Industrial Court of Nigeria Practice Direction and Guidelines for Court sitting 2020 were issued. See OMEREGIE VS EMORON (Supra); COVALENT OIL & GAS SERVICES LTD & ANOR VS ECOBANK (NIG) PLC & ANOR. (Supra).

17.   Similarly paragraph 7 of the Practice Directions had explicitly permits the use of technology, including virtual hearings and taking of oral evidence via electronic means as the current practice of the Court Nationwide. Although the Defendant/Respondent argued that these directions were tied to the Covid-19 Pandemic, the substantive powers to regulate procedure remain intact and is not limited by the explanatory notes.

18. Perhaps the Court's jurisdiction to adopt modern technological tools is an extension of its duty to ensure the efficient administration of justice and to provide parties with access to the Court regardless of your geographical barriers. See TYOH & ORS VS GOVERNMENT OF BENUE STATE & ANOR (2020) LPELR - 49961 (CA). Consequently, the Court has the legal foundation to entertain and grant application for Virtual hearings where the circumstances of the case justify such a departure from traditional physical sitting. So I hold.

19.   On issue No. 2, which is to the effect "whether the Claimant's relocation to Canada constitutes sufficient material to warrant the exercise of the Court's discretion to grant a virtual hearing. it is the contention of the Defendant/Respondent that the 2020 Practice Directions were specifically designed to minimize Covid-19 transmission risks and ensure access to justice during the pandemic rather than for personal convenience like relocation to Canada. He also contended that the Applicant sole reason for the request does not satisfy the requirements or the spirit of the 2020 Practice Directions as there is no mention of travel restrictions or health risk. Hence the Applicant has not placed sufficient materials before the Court to warrant the granting of this application.

20.   The Applicant on the other hand, posited that the Court possesses inherent powers under Section 6(6)(a) of the 1999 Constitution to grant Orders necessary for administration of justice and the smooth running of the judicial processes. Therefore, the Claimant's relocation to Canada makes virtual hearing an indispensable and convenient avenue for the administration of justice ensuring that the matter can proceed despite the Claimant's physical absence from Nigeria. Citing ERISI VS IDIKA (Supra).

21. Infact, there is no contention as to whether or not the Claimant had been relocated to Canada. Even the reason for the relocation is never in issue. if that is settled, then the Claimant's relocation to Canada constitutes sufficient material to warrant the exercise of the Court's discretion in favour of a virtual hearing. The reason being that access to justice is a paramount consideration. Thus, it is the duty of every Applicant to present necessary material before the Court in support of his application to enable the Court exercise its discretion in his favor. See SULAIMAN VS FRN (2017) LPELR - 41991 (CA).

22.   Meanwhile, compelling a Claimant who has relocated abroad to travel back to Nigeria purposely to testify as desired by the Defendant/Respondent is tantamount to imposing a significant financial and logistic burden on him. The relocation as argued by the Claimant/Applicant is a cogent fact that makes physical attendance in court difficult. Whereas, the right to fair hearing is sacrosanct and cannot therefore be lightly disregarded or discarded by the Court. It is indeed one of the pillars on which the concept of justice and fairness is built.

23.   The Court of Appeal in the case of EKPENATU VS OFEGOR 276 (2012) 18 NWLR (PT. 133) held that the Court has a duty to hold the balance between the parties quest for justice and this cannot and should not make it a habit of denying a party of his right to fair hearing as constitutionally granted under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) without first considering the overall interest of justice to the parties at all times in the adjudicating processes. See also NERC VS ADEBIYI (2017) LPELR - 42902 (CA).

24.   In conclusion, it is my considered opinion that the relocation of the Claimant to Canada justifies a departure from the traditional physical hearing to ensure the suit is determined on its merit rather than being stalled by procedural hurdles as contemplated by the Defendant/Respondent where he suggested that the testimony of the Claimant be abandoned. Therefore, this Court's discretion is best served by facilitating the testimony through available electronic as provided for in the guidelines of this Court. So I hold.

 

 

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Hon. Justice M. A Hamza

Judge