IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
HOLDEN AT MAKURDI
IN THE MAKURDI JUDICIAL DIVISION
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 4TH DAY OF APRIL, 2019 SUIT NO: NICN/MKD/75/2017
1. LESLIE OROHU OGO
2. OCHIM A. CHARITY
3. OKPOTO A. JONAH…………………………………………... CLAIMANTS
4. MAYANGE T. JOSEPH
5. AKURE A. KELVIN
1. NIGERIA ELECTRICITY LIABILITY
2. BUREAU OF PUBLIC ENTERPRISES (BPE)………………………DEFENDANTS
A.O. Aruta with D.A. Awuru and E.U. Uzowuru for the claimants
B.A. Iorheghem with P.O. Abaaji holding brief of Prof. Andrew I. Chukwuemerie, SAN for the 1st Defendant.
Rotimi Olujide for the 2nd Defendant.
For the court’s determination are twine applications brought before this court by the Defendants. The First application is a Notice of Preliminary Objection dated 13/04/2018 and filed on the 8/05/2018 by the 1st Defendant and the second one is a motion on Notice dated 2/10/2018 and filed on the 12/10/2018 by the 2nd Defendant.
The reliefs sought in the Notice of preliminary objection by the 1st Defendant are as follows:
"1. AN ORDER striking out this suit for failure to disclose any reasonable cause of action against the 1st Defendant in the complaint and in the statement of facts or claim.
2. SUCH CONSEQUENTIAL OR FURTHER ORDERS as the Honourable Court may deem fit to make in the circumstances."
The grounds for this objection are stated as follows:
“A. The crux of this suit is the alleged non-payment of the Claimants' salary arrears allegedly accruing from December, 2013 to December, 2017 and terminal benefits.
B. This Honourable Court was established by the National Industrial Court Act which spells out the matters that the Honourable Court can adjudicate upon.
C. The 1st Defendant was set under the Electricity Power Sector Reforms Act, 2005 (“EPSR Act”) with the primary responsibility of administering the standard debts and non-core assets of PHCN, managing PENSION liabilities of PHCN employees and taking over the settlement of PHCN’S Power Purchase Agreement (PPA) debts obligations and legacy debts.
D. That the Claimants have never been and are not employees of the 1st Defendant and that after its creation under the Electricity Power Sector Reforms Act, 2005 (“EPSR Act”) it (the 1st Defendant) does not have the responsibility of paying severance packages to any person or staff of the defunct PHCN or to disengage any staff whomsoever.
E. The 1st Defendant does not do more than the things enumerated and indeed all other things are the responsibilities of other successor companies of the defunct PHCN.
F. The Claimants have not shown any cause of action against the 1st Defendant by any means."
In support of the Notice of preliminary objection, the 1st Defendant filed a 12 paragraph affidavit deposed to by Mrs. Ebele Mbanefo Fayose, an employee of the 1st Defendant/Applicant. A single document was marked and attached as Exhibit NOP “1”; comprising the gazetted Supplementary Regulations to Part 1 of the Electric Power Sector Reform Act on the Transfer of Assets, Employees, Liabilities, Rights and Obligations of the Power Holding Company of Nigeria Plc 2010, as well as the Transfer of Assets, Employee, Liabilities, Rights and Obligations of Power Holding Company of Nigeria, Plc, Order, 2010.
A written address of counsel also accompanied the Notice of Preliminary objection. By it, Counsel submitted for the determination of the court the following question;
"Whether or not the Claimants have disclosed any cause of action whatsoever against the 1st Defendant and whether the suit should not be dismissed or struck out."
Counsel briefly argued and urged the court to either dismiss or strike out the case against the 1st Defendant as there is no cause of action disclosed against her.
The Claimants caused a 4 paragraph Counter Affidavit to the 1st Defendant’s Notice of Preliminary Objection to be filed on 18/05/2018. The said Counter Affidavit is deposed to by the 1st Claimant where it was averred that the Claimants were the staff of the defunct Power Holding Company of Nigeria (PHCN) before the privitazation exercise and before the hand over of the company to the private owners who are yet to be formally disengaged. That the Claimants have not been paid their salaries since December, 2013 and are yet to be paid their severence packages by the Defendants. That the 1st Defendant took over the debts and liabilities of the PHCN arising from privitazation exercise. That the 1st Defendant/ Applicant assumed responsibility to administer the stranded debts and non-core assets of Power Holding Company of Nigeria [PHCN]. That the 1st Defendant/Applicant took over the settlement of Power Holding Company of Nigeria, Power Purchase Agreement [PPA] debts obligations, legacy debts and other liabilities. Claimants attached Article of Association of the Nigeria Electricity Liability Management Limited and marked same as Exhibit A3.
In the written address of Counsel, twofold issues were formulated and submitted to this court for determination. They are thus:
"1. Whether the Claimants have disclosed any cause of action against the 1st Defendant/Applicant to warrant this suit.
2. Whether the Applicant’s application is incompetent before this Honourable Court."
Counsel argued the issues collectively, submitting that the Claimants have disclosed a reasonable cause of action against the 1st Defendant/Applicant. To this end, counsel cited and relied on the cases of: EBIRIM V. AGBUGBA (2016) ALL FWLR (PT. 827) 675 @ 715 PARAS. C-F; IKENNE L.G. V. WEST AFRICAN PORTLAND CEMENT PLC (2012) ALL FWLR (PT. 642) 1747 @ 1770-1771 PARAS. H – F.
As to the criteria which the court should use to determine jurisdiction, counsel cited for the court the cases of MOHAMMED & ORS V. HUSSEINI & ANOR (1998) 14 NWLR (PT. 584)108 @ 159 – 160; MADUKOLU V. NKEMDILIM (1961) 1 ALL NLR 587, while also relying on Section 254(c) of the 1999 Constitution as amended and Section 7, National Industrial Court Act 2006.
Besides that, Counsel directed the attention of this court to the fact that the Defendants’ Notice of Preliminary objection is signed by Barnabas A. Iorheghem, Esq. who signed for Prof. Andrew I. Chukwuemerie, SAN, FCIArb, (UK) while the NBA stamp affixed is that of Prof. Andrew I. Chukwuemerie, SAN, FCIArb, (UK). Counsel submitted that the Preliminary objection filed by the 1st Defendants is rendered incompetent as a result of this failure to comply with the Rule 10 (1), (2) and (3) of the Rules of Professional Conduct, 2007.
In conclusion, counsel urged the court to strike out the application for being incompetent and baseless.
Reacting to the counter affidavit, the 1st Defendant filed a 13-Paragraph Further and Better Affidavit in Support of the Notice of Preliminary Objection on 14/06/2018. The said Further Affidavit is deposed to by Mrs. Ebele Mbanefo Fayose. Along with the Further Affidavit, the 1st Defendant’s counsel also filed a further written address in support of the notice of preliminary objection where more extensive arguments were canvassed on whether there exists a cause of action against the 1st Defendant.
For the second application as brought by the 2nd Defendant, it is dated 02/10/2018 and filed on 12/10/2018. The 2nd Defendant is by that application seeking the following reliefs from the Honourable Court:
"1. AN ORDER of this Honourable Court dismissing the Claimants/Respondents’ suit as constituted for the reasons of the incompetence which has deprived this Honourable Court of prerequisite jurisdiction to entertain it.
2. AND for such further Order (s) the Honourable Court may deem fit to make in the circumstances of this case."
The grounds for this application were stated thus:
"A. The Complaint issued on the 29th December, 2017 (at the National Industrial Court of Nigeria, Makurdi Judicial Division) which is the court process through which the Claimants/Respondents commenced this suit and brought to the notice of the 2nd Defendant/Applicant, did not comply with the mandatory provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act.
B. Accordingly, this Honourable Court lacks jurisdiction to entertain the suit on the basis of the failure of the Claimants/Respondents to comply with sacrosanct and mandatory provisions of the relevant laws and same should therefore be dismissed in limine."
A 5-Paragraph Affidavit of Israel Istifanus, a Litigation Clerk in the law firm of Rotimi Olujide supported the application. The deponent averred as contained in Paragraphs 4(i – iv) of the said affidavit that the Claimants/Respondents’ Complaint commencing this suit was made and/ or issued on the 29th December, 2017 at the National Industrial Court of Nigeria, Makurdi Judicial Division, Benue State. That the 2nd Defendant/Applicant was served with the Complaint in Abuja, Federal Capital Territory. A copy of the said Complaint was attached as Exhibit A. That a search conducted to sight the original copy of the said Complaint and other originating processes in the court’s file as well as the ones served on the 2nd Defendant/Applicant confirmed his belief that the Originating Complaint was not issued, endorsed and served in compliance with Sections 97 and 99 of the Sheriffs and Civil Process Act. That the non-endorsement of the Complaint issued in Makurdi, Benue State but served on the 2nd Defendant/Applicant in Abuja, Federal Capital Territory, was in breach of the combined mandatory provisions of Sections 95, 97 and 99 of the Sheriffs and Civil Process Act.
2nd Defendant’s Counsel accompanied the application with a written address wherein a lone issue was formulated and submitted for determination by the Honourable Court, to wit:
"Whether this Honourable Court has Jurisdiction to entertain the Claimants/Respondents’ suit having regard to the fact that the Complaint through which the suit was commenced and brought to the 2nd Defendant/Applicant’s notice is not endorsed in strict compliance with Section 97 and 99 of the Sheriffs and Civil Process Act."
Counsel argued the issue widely and extensively while relying on Section 97 of the Sheriffs and Civil Process Act, that the Complaint issued on the 29th of December 2017 at the Makurdi Division of the Court was not endorsed as mandated before being served on the 2nd Defendant in Abuja. Counsel also pointed out that the 14 days inserted on the Complaint is not in compliance with the provision of Section 99 of the Sheriffs and Civil Process Act which stipulates not less than 30 days for service outside the state. Counsel then cited and relied on the case of OWNERS OF MV ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) to argue that this Court is bound by the provisions of Section 97 of the Sheriffs and Civil Process Act notwithstanding that its jurisdiction covers the entire nation. Counsel referred to and submitted for the attention of the Court the recent unreported Court of Appeal case in Appeal No: CA/A/588/288/2013: GOVERNING COUNCIL OF NATIONAL TEACHERS INSTITUTE, KADUNA & ANOR. V. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU) on the point.
It is also the submission of the 2nd Defendant that by virtue of order 10 rule 2 of the 2017 Rules of this court the complaint through which the claimants commenced this action qualifies as an originating process which requires endorsement as stipulated in section 97 of the Sheriffs and Civil Process Act.
Finally, Counsel urged this Honourable Court to be guided by these submissions and dismiss the Claimants’/Respondents’ suit.
Reacting to the application, the Claimants caused a 4-Paragraph Counter Affidavit to be filed to the 2nd Defendant’s motion on 25/10/2018. The 1st Claimant deposed to same. Claimant counsel adopted the issue formulated by the 2nd Defendant/Applicant. Relying on Order 9 Rule 1 (1) of the National Industrial Court Nigeria (Civil Procedure) Rules, Counsel submitted that the 2nd Defendant’s application is incompetent and cannot be granted by the court because the 2nd Defendant failed to file a Memorandum of Appearance within fourteen (14) days as required by the Rules. Though not conceding the point, counsel argued that if the 2nd Defendant’s application could be considered despite the failure to file Memorandum of Appearance, the court should find that it lacks merit.
Counsel submitted that Sections 95, 97 and 99 of the Sheriffs and Civil Process Act are inapplicable to the National Industrial Court because the Court has one jurisdiction. Counsel further submitted that contrary to the view expressed by the 2nd Defendant, leave is not required to serve any originating process within any other Division of court, provided it is not outside of the Federation. Referring to Order 1 Rule 10 (2) of the Rules of Court, counsel submitted that the purport of the “judicial division” and “out of jurisdiction” as featured in the Rules is that unlike the Federal High Court Rules, endorsement of processes for service outside the issuing state is not required except where such process is for service outside the country.
Citing and relying on the pronouncement of the Supreme Court in the case of AKEREDOLU V. ABRAHAM (2018) LPELR 44067 (SC), Counsel submitted that the “Arabella” case is no longer the current position of the law.
Although not conceding the point that Sections 95, 97 and 99 of the Sheriffs and Civil Process Act is applicable to this Court, Counsel argued that going by Order 1 Rule 9(3) of the Rules of Court, mere irregularity would be the effect of non-compliance. Counsel further submitted that the essence of service is to bring to the notice of a party a case against him. Cited OKOYE V. CENTRE POINT MERCHANT BANK LTD (2008) ALL FWLR (PT. 441) 810. Counsel also relied on Order 3 Rule 10 (iv) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to say that the Complaint (Exhibit A) was duly issued in accordance with the fourteen (14) days specified thereby.
Counsel concluded by urging the court to dismiss the application for being frivolous and that the 2nd Defendant's issue raised is a technical issue which will not be allowed to defeat the essence of justice.
2nd Defendant in reaction to the Claimants' counter affidavit filed a further and better affidavit and a written reply in submitting that failure of the claimants to comply with the provisions of the Sheriffs and Civil Process Act is not a mere irregularity that can be waived and the case of Arabella is still the current position of the law not Akeredolu's case.
OPINION OF THE COURT
I have given careful consideration to the Notice of Preliminary Objection and the Claimants’ response thereto as well as the submissions of the parties and wish to consider the following questions for determination:
1. Whether the Notice of preliminary objection filed by the 1st Defendant is competent?
2. Whether the Claimants' claim, discloses a cause of action against the 1st Defendant?
The Court of Appeal, following the line of reasoning in the Supreme Court cases of OKAFOR V. NWEKE (2017) 10 NWLR (PT. 1043) 521; OGUNDELE V. AGIRI (2009) 12 SC (PT. 1)135 held in the case of PEAK V. NDIC (2011) 12 NWLR (PT. 1261)253 thus:
“Any person signing process on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of registered legal practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in the chambers.”
The question is whether the Notice of Preliminary Objection signed “for” or PP. (i.e per procurationem) Prof. Andrew I. Chukwuemerie, SAN, FCIArb, (UK) by Barnabas A. Iorhenghen, Esq. is by that singular fact rendered invalid.
The Black's Law Dictionary (7th Edition) at page 1387 defines word ‘signature’ as: “A person's name or mark written by the person or at the person’s direction. Any name, mark or writing used with the intention of authenticating a document.”
The Supreme Court has held in a plethora of cases including OKAFOR & ORS V. NWEKE & ORS (2007) 3 SC PT 11 PAGE 55 OF 64 (2007) 10 NWLR PT 1043 PAGE 521 AT 531-2 that processes filed in court must be signed by a Legal Practitioner recognized by the law.
Section 24 of the Legal Practitioners Act 20 (LPA) defines a legal practitioner as: “a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings.”
I give due regards to the Supreme Court case of SLB CONSORTIUM V. NNPC (2011) 3-4 MSJC PAGE 145, where it was held as follows. “What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process, it is incurably bad; and Rules of court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). All processes filed in court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm”.
Emphasis here is on the name and the signature. Meaning, a process that is not properly signed is fundamentally defective.
Let me quickly point out here that the name of the legal practitioner whose signature is appended on the processes is disclosed and it features as the third name under the signature. This is in contrast with the facts and views expressed in the cases of OKAFOR & ORS V. NWEKE & ORS (SUPRA) and SLB CONSORTIUM V. NNPC (SUPRA), respectively, which mainly portend to a situation where the signature featured cannot be credited to any particular person, much less a lawyer. And in any case, there is no telling whether such pleading has been signed by proxy.
In the instant case, the owner of the signature signing for and on behalf of Prof. Andrew I. Chukwuemerie, SAN, FCIArb, (UK) is ascertained as Barnabas A. Iorheghem, Esq., a legal practitioner as envisaged by S. 2(1) of Legal Practitioners Act, Cap. 207 of the laws of the Federation Nigeria 1990. This Court therefore has no problems with that. I agree with the submission of the 1st Defendant's counsel that the absence of a stamp and seal on a document only renders that document voidable not void.
Moving on to the question of whether a cause of action is disclosed against the 1st Defendant, a cause of action is said to be the combination of facts which give rise to a right to sue and it consists of two elements - the wrongful act of the defendant which gives the Claimant his cause of complaint and the consequent damages.
Ordinarily, it is a settled principle of law that in the determination of whether a Claimant’s action discloses any cause of action or the nature thereof, the court is bound to restrict itself to the Claimant’s statement of claim without recourse to the defendant's statement of defence. SEE UBN PLC V. UMEODUAGU (2004) LPELR-3395(SC).
Similarly, Lewis JSC, delivering judgment in KUSADA V. SOKOTO NATIVE AUTHORITY (1968) 1 ALL NLR 377 AT 382; (1968) ALL NLR 366 AT 370 has opined that it is to the writ and pleadings that one has to look to see upon what the action is based.
Looking at the complaint coupled with Exhibit NPO1, I find that the Claimant’s cause of action against the 1st Defendants as being spoken of here operates as a matter of law.
The explanatory note to Exhibit NOP1, particularly page B451 – 452 which is the Transfer of Assets, Employees, Liabilities, Rights and Obligations of Power Holding Company of Nigeria, Plc. Order 2010 explains the purport of the Regulation thus:
This order provides for the transfer of assets, employees, liabilities, rights and obligations of Power Holding Company of Nigeria, Plc to the successor companies listed herein and 23rd September, 2010 is fixed as the commencement date for the transfer.
Similarly, the explanatory note at Page B449 – 450 of Exhibit NOP1 which is the Supplementary Regulations to Part 1 of the Electric Power Sector Reform Act on the Transfer of Assets, Employees, Liabilities, Rights and Obligations of the Power Holding Company of Nigeria, Plc, 2010 also states that:
“these regulations supplement Part 1 of the Electric Power Sector Reform Act, 2005, in accordance with the provisions of Section 18 of the Act and empower the council to create additional successor companies, make amendments to Transfer Orders and make further transfer of the assets, employees, liabilities, rights and obligations of Power Holding Company of Nigeria, Plc to such successor companies created in order to give effect to the objectives of the Electric Power Sector Reform Act, 2005”
Suffice it to point out that Section 1 of the Transfer of Assets, Employees, Liabilities, Rights and Obligations of Power Holding Company of Nigeria, Plc. Order 2010 provides thus:
The Power Holding Company of Nigeria Plc shall within one year of commencement of this Order, transfer such of its assets, employees, liabilities, rights and obligations as may be specified, to the companies set out hereunder:
¡. National Power Training Institute of Nigeria Ltd/Gte;
¡¡. Nigeria Electricity Liability Management Ltd/Gte;
¡¡¡. Electricity Management Services Plc;
iv. Nigerian Bulk Electricity Trading Plc.
As it is, the combined import of the foregoing vests liability for the Claimants’ claims on the 1st Defendant. It becomes by reason and operation of law. The Black's Law Dictionary defines the term “operation of law” as the “manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or co-operation of the party themselves.”
Besides that, I find Exhibit A3 as brought before this Honourable Court by the Claimants to be equally instructive. It is the Certified True Copy (CTC) of the Amended Memorandum and Articles of Association of the 1st Defendant, the Nigeria Electricity Liability Management Limited/Gte. The objects of the company are stated in Paragraph 3 thereof. For our benefit, Paragraph 3(d) is of particular interest. It reads:
"... to take over the settlement of the PHCN’s Power Purchase Agreement (PPA) debts obligations, legacy debts and any other liabilities as may be determined by the National Council on Privatisation within the Nigerian Electricity Supply Industry from time to time.”
Without more, I find that Exhibit NOP1 and Exhibit A3 are fairly sufficient in coming to a conclusion that the 1st Defendant’s Notice of Preliminary Objection lacks merit.
It is all the more so, considering that it has been settled that the fundamental reason to proceed against a party in an action is to make such party bound by the result of the action. SEE HON. MARTIN OKONTA V. KINGSLEY NONYE PHILIPS & ORS (2010) 7 – 12 SC 173.
It therefore follows that the Claimant’s cause of action lies against the 1st Defendant by virtue of Exhibit NOP1 and hence, by operation of law.
I find substance in the arguments of the Claimants on this issue and accordingly dismiss the 1st Defendant’s Notice of Preliminary Objection dated 13/04/2018 and filed on the 8/05/2018.
For the 2nd Defendant's application, the Sheriff and Civil Processes Act is mainly the law regulating service of originating processes. Section 96 of the Act provides that any writ issued out or requiring the Defendant to appear in any court of a state may be served on the Defendant in any other state subject to the rules of court made under this Act.
Coming to Section 97 of the Act, it provides that before such a writ is issued in one state there must be a fulfillment of a mandatory precondition; endorsement. This is now adjudged by courts to be fundamental requirement to commencement.
See NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664; EZEOBI V. ABANG (2000) 9 NWLR (PT. 672) 230 @245 C-D; DREXEL ENERGY & NATURAL RESOURCES LTD V. TRANS INTER-NATIONAL BANK LIMITED (2008) 18 NWLR (PT. 1119) 388 @ 436-437.
In 2008 the Supreme Court while stating the mandatory nature of issuance of a writ for service out of jurisdiction stretched the law to include the Federal High Court. It reiterated that the stipulated endorsement in Section 97 of the Sheriffs and Civil Process Act must be complied with to the letter, irrespective of whether it is a state High Court or Federal High Court. See OWNWERS OF THE M.V. ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (Pt. 1097) 182 @ 220-221 where the Supreme Court held that:
“By virtue of section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the state in which it is issued must, in addition to any endorsement of notice required by law of such state, have endorsed thereon, a notice indicating that the summons is to be served out of the state and in which state it is to be served. Failure to endorse the required notice on a writ of summons for service outside of a state where it is issued is not a mere irregularity but a fundamental defect that renders the writ incompetent, and goes to the root of jurisdiction and affects the competence of the court… …it is not in doubt that the provisions of the said section 97 of the Act are applicable in all High Courts, including the Federal High Court…”
Laudable as this position may be, it is my respectful view that the circumstances at the time which informed the decision of the apex court have somewhat changed. The old 1976 Federal High Court Rules which formed the basis of the Supreme Court decision in the Arabella case did not make provision as to what service outside jurisdiction meant. In other words, there was no clear cut distinction of whether outside jurisdiction meant out of Nigeria or out of a state (inter-state).
Moreover, it is worthy of note that the provision of the Sheriff and Civil Process Act is not absolute. Section 103(2) of the Sheriff & Civil Process Act makes Section 97 of Sheriff and Civil Process Act subject to the Rules of the National Industrial Court. Section 103 (2) provides thus:
“Such service may, subject to any rules of court which may be under this Part, be effected in the same way, and shall have the same force and effect as if the service were effected in the state or the capital territory in which it was issued.”
By its very wording, it makes the issues of service subject to the provision of the respective rules of Court on Civil procedure.
Now coming to the National Industrial Court, with due regards to the case of GOVERNING COUNCIL OF NATIONAL TEACHERS INSTITUTE, KADUNA & ANOR. V. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU) as cited and relied upon by the 2nd Defendant/Applicant herein, certain pertinent facts need to be called to mind. First the said appeal arose from a judgment of the National Industrial Court sitting in Abuja in Suit No. NICN/ABJ/284/2012 delivered on 24/07/2013; that is, before the coming into force of the 2017 Rules of the Honourable Court. It appears fairly certain that their Lordships at the Court Appeal did not factor in our current Rules in coming to their finding.
In any event, following the principle of stare decisis, an inferior Court is ordinarily bound by the decision of the Superior Court, so this court should otherwise be bound by the decision of the Court of Appeal. SEE OBIUWEUBI V. C.B.N. (2011) 7 NWLR (PT. 1247) 465 S.C.
However, I need to point out that since the case cited by Counsel for the 2nd Defendants did not contemplate and factor in our current 2017 Rules as I have said earlier, it amounts, in my humble opinion to a fresh and distinct issue from the case supplied, and this Court can rightly pronounce in this instant case without prejudice to the case of GOVERNING COUNCIL OF NATIONAL TEACHERS INSTITUTE, KADUNA & ANOR. V. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU). I remain of the humble opinion that the “Arabella” case and indeed the GOVERNING COUNCIL OF NATIONAL TEACHERS INSTITUTE, KADUNA & ANOR. V. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU) are distinguishable.
Suffice it to note that Order 7 Rules 15 and 16 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 are instructive on this point.
ORDER 7 RULE 15 (1) Provides:
"The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria; and is only divided by the president of the court into judicial Divisions or registries for adjudicatory and administrative convenience."
Sub-Rule 2 thereof further provides:
"All originating processes or other Court processes filed by any party before court shall be served on any party in any part of the Federation without leave of Court."
Rule 16 of the same Order 7 goes on to state that:
"All originating processes or other processes filed by any party before the Court which are to be served on any other party outside the Federal Republic of Nigeria shall be with leave of the Court."
These provisions are a reflection of the ideal that this court enjoys territorial jurisdiction across the federation, irrespective of her Divisions. Service abroad is the service outside jurisdiction that is contemplated by the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.
With due regards to both the material provisions of the Sheriffs and Civil Processes Act and the “Arabella” case being bandied by the 2nd Defendant, inter-state service of originating process does not require leave of Court as per the current 2017 Rules of this Court. It can safely be said that the decision of the Supreme Court in the Arabella's case is not applicable in the instant case for the following reasons;
The NICN is one jurisdiction. See Order 7 Rule 15 NICN Civil Procedure Rules 2017.
b. Section 97 of the Sheriff and Civil Processes Act is subject to the Rules of Court. See Section 96 and 103(2) of the Sheriff and Civil Process Act.
c. The “Arabella” case is distinguishable from the case on hand so also the case of Governing Council of National Teachers Institute, Kaduna & Anor. V. Non-academic Staff Union OF Educational And Associated Institutions (NASU).
Non-compliance with Section 97 of the Sheriffs and Civil Process Act particularly in the light of Section 103(2) which makes Section 97 subject to the Rules of Court does not derogate from the jurisdiction of Court.
Section 21(1) of the National Industrial Court Act is apt and says thus;
“The court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the president of the court into such number of judicial divisions as the President may from time to time, by instrument published in the Federal Gazette decide”
In all, I hold that the application brought by the 2nd Defendant, dated 02/10/2018 and filed on 12/10/2018 is without merit and it is hereby dismissed.
As an aside, one can only hope that this vexed issue will be put to rest by express legislation sooner so that the mischief created in our jurisprudence will no longer be used to bug-down courts, paving the way for knotty issues of substantive law to be attended, in the overriding interest of justice.
Ruling is delivered accordingly.
Hon. Justice S. H. Danjidda