IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: JUSTICE IBRAHIM S. GALADIMA
Date: 13th May, 2019 SUIT NO: NICN/OW/25/2018
TIMOTHY ABATAN CLAIMANT/RESPONDENT
SHANDEES FAST FOOD RESTAURANT LTD. DEFENDANT/APPLICANT
- O. MEBAGHANDU, ESQ FOR THE CLAIMANT/RESPONDENT.
- CHIEF EMEKA AKWURUOHA FOR THE DEFENDANT/APPLICANT.
The Defendant/Applicant, had on the 26/2/2019, filed a notice of preliminary objection on the following grounds:
- That the present suit is an abuse of Court (process) being an action brought outside the territorial jurisdiction of the Court and not being in compliance with the mandatory provisions of the Sheriffs and Civil Process Act.
- The suit amounts to forum shopping having been filed in a State outside the Defendant’s State of residence against the rules of Court and practice.
- The Defendant, being a Company incorporated under the CAMA 2004, was not duly served the processes of this Court in accordance with the CAMA.
- The Clamant lacks any right to demand for the reliefs sought same being injunctive and declarative reliefs.
- No reasonable cause of action was disclosed against the Defendant.
- This Court lacks the jurisdiction to entertain the substantive suit unless and until this application is determined.
- This suit was filed in disregard of due process of Court thus depriving this Court of jurisdiction to entertain same.
- The Court has a duty ex debitojustitae to grant the reliefs sought.
- That the entire claim borders on enforcement of fundamental rights rather than an employment action and this court is bereft of jurisdiction.
In support of the Notice of Preliminary Objection is an affidavit of 9 paragraphs duly deposed to, a written address and one exhibit lettered ‘A’. The defendant’s counsel in his address raised two issues for determination, thus:
- Whether the honourable court has the jurisdictional competence to entertain the claimant’s instant suit, as constituted particularly when there is a violation of the law and rules of court in the mode of commencement of the suit?
- Whether the honourable court can validly proceed with any other business in the suit in the face of the challenge to its jurisdiction?
On the first issue, counsel submitted relying on the case of Rivers StateGovernment V. Specialist Konsult (citation supplied) that jurisdiction is essential to the exercise of a court’s powers, and any proceedings conducted without jurisdiction amounts to a nullity.In this respect, counsel was of the view that the institution of this action in the Owerri division of this court instead of Port-Harcourt amounts to forum shopping and runs afoul of Order 2(1) of the NICN Rules. He animadverted that the failure to comply with sections 97 and 98 of the Sheriff and Civil Processes Act 2004 by endorsing the complaint filed in Owerri to be served in Port Harcourt, makes this case grossly incompetent.Again, counsel submitted that personal service of the originating processes in this suit was not effected on a principal officer, director or secretary of the defendant company in compliance with section 78 of the Companies and Allied Matters Act thus robbing this court of jurisdiction over this cause –per Mark v Eke;Sken Consult v Ukey (citations supplied).
Furthermore, counsel argued that this case discloses no reasonable cause of action against the defendant as such, this suit amounts to an abuse of court process being an improper use of court process considering that all the parties in the case are resident in Rivers State while this case was filed in Imo State. The court was urged to decline jurisdiction in this case and strike out or dismiss the suit entirely.
Regarding issue two, it was the view of counsel that objections on grounds of jurisdiction may be raised at anytime, and a court whose jurisdiction is challenged cannot make any other order(s) until it settles the dispute/challenge to its jurisdiction. I was referred to the case ofSoludo v Osigbo (citation supplied). Finally, counsel urged the court to dismiss this suit in its entirety as it is incurably defective.
The Claimant/Respondent’s Counsel, despite the several adjournments granted him, could only react to the NPO by filing a Counter Affidavit and written address accompanied by an exhibit, on the 21st day of March, 2019 definitely out of time and which was also not served on the Defendant/Applicant. His written address identified one issue for determination, which is: whether the claimant is entitled to the reliefs sought?
In his argument, he stated that the claimant has shown in his pleadings that he has a cause of action because there was an employment relationship between him and the defendant, and to grant the preliminary objection would amount to undue technicality to defeat the ends of justice which accordingly this court loathes – per Aribisala v Ogunyemi(citation supplied).Also, counsel submitted that Rules of Courts are meant to promote justice, for the convenience of the court and not to defeat the ends of justice.In conclusion, counsel urged the court to strike out the preliminary objection and hear this case on the merits.
The Defendant’s/Applicant’s Counsel in spite of not being served with the Counter Affidavit and despite the Claimant Counsel’s inability to apply for an extension of time to file out of time, decided to waive his right to be served on the 28th of March, 2019 and instead, applied for the adoption of the addresses for and against the preliminary objection. The Claimant’s Counsel failed to appear in Court on that 28th of March when this application was adopted which is not an unusual occurrence to this Court anyway giving the fact he had rarely appeared since this case was first mentioned on 4th October, 2018.
The facts of this case tersely is that the Claimant purportedly resigned his employment with the Defendant on the 1st day of October, 2017 after serving the Defendant a month’s notice in that regard. Upon resignation, he wrote a letter of demand on the 27th of November, 2017 for his purported unpaid salaries including an alleged 10% compulsory deductions made from his salary. Accordingly, the Claimant believes his human right and dignity have been abused by the Defendant thus the reason for this complaint for the following reliefs:
- A declaration that the illegal and unlawful deductions of 10% of the Claimant’s salaries under Clauses 5 and 6 of the offer of employment, is a gross violation of claimant’s rights.
- A declaration that the defendant’s arbitrary deprivation and denial of the claimant’s salary worked for is an abuse, an exploitation, and an infringement of the claimant’s rights as enshrined in articles 4 and 5 ofthe African Charter on Human and Peoples’ Rights.
- A declaration that the claimant’s hard earned reputation which was grossly injured and irreparably shredded by the unsubstantiated allegation of fraud levied against him by the defendant without fair hearing is an abuse of his integrity, a violation of his rights as enshrined in articles 4,5 and 7 of the African Charter on Human and Peoples’ Rights and chapter 4 of the constitution.
- A declaration that the mental torture and trauma caused on the claimant by the defendant indicting the claimant without fair hearing is a gross violation of his right to fair hearing, health and his right to human dignity as guaranteed in articles 4and 5 of the African Charter on Human and Peoples’ Rights and chapter 4 of the Constitution.
- An order that the defendant pay the claimant his January salaries which is N55,000, his leave allowance for the month of September and N19,000 balance of his October salary with 10% interest till date.
- An order that the defendant pays the claimant his 10% salary deductions since September 2013 till October 2017.
- An order that the defendant pays the claimant five million naira as special damages for non-payment of the claimant’s salaries worked for and entitlements.
- An order that the defendant pays the claimant the sum of ten million naira as damages for violations suffered.
- An order that the defendant pays the claimant the sum of two million naira as legal fees for his counsel.
From the foregoing summary of the submissions of both counsel to the parties,four salient issues appear to be worthy of consideration, as follows-
- Whether leave of this court needs to be obtained to issue and serve the originating processes in this suit on the defendant in Rivers State as required by section 97 of the Sheriffs and Civil Processes Act?
- Whether the originating processes in this suit were validly served on the defendant?
- Whether this suit discloses any reasonable cause of action against the defendant?
- Whether the claimant has locus standi to seek the reliefs in this suit?
The Defendant sought to have the issuance and service of the Originating Processes on it set aside, on the grounds thatthe Claimant ought to seek leave of court to issue and serve the complaint outside Imo State. It is canvassed that there was no indication on the complaint that prior leave of this court was first sought and obtained before issuing and serving the complaint on the Defendant in accordance with section 97 of the Sheriffs and Civil Processes Act. Counsel submitted that since leave of court was not sought to issue and serve the complaint nor did the originating processes carry the prescribed endorsement, the complaint is incompetent and should be set aside.
This issue raised by the Defendant in this instant application with respect to the applicability of the provisions of Section 97 of Sheriff and Civil Processes Act to the originating process issued from this court and the need to seek and obtain leave to issue and serve the originating processes from the State of issuanceto another sState, has already received judicial reviewals in several rulings and judgments emanating from this court. I will briefly lay down the prevailing position of this court on the issue.
Section 21(1) of the National Industrial Court Act 2006 makes it very clear that the whole of the Federation of Nigeria is a single jurisdiction for the National Industrial Court. The divisions of this Court in various states are for administrative convenience only and as such, they do not have exclusive territorial jurisdiction restricted to the division or Statelike we have with the State High Courts. It has been the view of this Court that the provision of Section 97 of the Sheriffs and Civil Process Act do not apply to processes emanating from this Court. See the judgment in Suit NICN/CA/75/2012: BRIGHT CHINEDU WODI vs. DIFFERENTIAL ALUMINIUM AND STEEL COMPANY LTD & ANOR delivered on the 21st day of January 2014; the ruling in suit No. NICN/OW/38/2013: UGOALA CHIDINMA JOY (MRS.) vs. ABIA STATE UNIVERSAL BASIC EDUCATION BOARD delivered on 28th April 2014; Suit No: NICN/EN/14/2012: IFINEDO NORRIS EBIBUM vs. AFRIBANK NIGERIA PLC. (NOW MAINSTREET BANK LTD) delivered on the 24th day of August, 2012 and in suit No: NIC/LA/46/2009. DR. AINA SIMEON ADEODUN& 3 ORS. Vs. GOVERNING COUNCIL, OYO STATE COLLEGE OF EDUCATION delivered on 8th February, 2011. Therefore, service of the processes of this court on any defendant in other States is not service out of jurisdiction as to require the sort of endorsement contemplated in Section 97 of the Sheriffs and Civil Processes Act or the need to seek leave to issue and serve the Complaint in another state. Therefore, in view of the position of this court on the application of Section 97 of the Sheriffs and Civil Processes Act to the originating process issued from this court, I find no merit in this ground of the Defendant’s application. It is hereby dismissed.
From the records before me, theinitial originating processes in this suit were served at the Defendant’s No. 148 Okporo Road, Rumuobiakani, Portharcourt and it was received by the AssistantManager, one Mr. Ogagifo Moses. Obviously, this Defendant entered appearance in this suit, albeit conditionally. It also caused to be filed, a statement of defence where it indicated an intention to raise the objections now contained in this application. The Defendant is now contending in this application that the processes were not served on the Defendant’s director, secretary, or principal officers. The Defendant’s counsel correctly cited Section 78 of the Companies and Allied Matters Act in support of his submissions.
Section 78 of CAMA provides thus:
“A court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company”.
By this provision, when it is a Court process, service on a company is to be effected only as provided by the rules of the Court issuing the process. In that case, let me examine what the rules of this Court say about service on companies.
By Order 7 Rule 6 of the Rules of this Court whichprovide as follows:
“subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior or responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.”
This provision has given several alternative means of service on a company. Among the ways a company can be served is service on a senior or responsible officer. By effect of the above provision of the Rules of this court, the Defendant can be served through any of its responsible officer. What is more, the Defendant has become aware of this suit through the service on its assistant manager and has even filed a defence to the suit. I do not think the issue of how the Defendant was served matters any longer, even though the rules of this court permit the mode of service. In my view, the service on the Defendant is proper, valid and cannot be set aside.Although Order 7 above is made subject to the provision of Section 78 of CAMA, I find that the mode here employed for service on the defendant company, is not derogatory to the method prescribed by Section 78 of CAMA. Therefore,issue 2 is again resolved in favor of this claimant/respondent.
There is no controversy that it is the originating processes only that can be looked into to determine whether or not there is any cause of action or a reasonable cause of action. Cause of action is said to consist of all those things necessary to give a right of action. A reasonable cause of action is a cause of action with some chance of success, if only the allegations in the claimant’s pleadings are considered. See J.J. Techno Nig Ltd Y. H.Q.S. Ltd (2015) 8 NWLR (1460) 1 at 21-22, H-B.
What then is this claimant’s cause of complaint?
The only way to determine same is to scrutinize the statement of facts only without scrutinizing the documents accompanying it and without also looking at the statement of defence or any other document from the defence in order to ascertain whether the claimant’s action is justiciable and or may likely succeed in the absence of any defense – perDiamond Pet. Intl Ltd v Governor CBN (2015) 14 NWLR (pt 1478) 179 at 199, D-E.
A careful perusal of the claimsindicatethat there is a demand for unpaid salaries and allowances and for declarations that the defendant’s acts towards the claimant are a breach of hisFundamental Rights.Section 254C(1)(d) of the 1999 Constitution, provides that the NIC shall have jurisdiction over matters “relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine”. Whereas this section of the 1999 Constitution cannot be used as the basis of filing claims under the Fundamental Rights (Enforcement Procedure) Rules – see SSAUTHRIAI v. Olotu  14 NWLR (Pt. 1531) 8 at 18, – there is nothing in principle forbidding the recourse to this court through normal processes as has been done by the claimant who filed a complaint.
Ordinarily, the fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on this court except an employment issue is involved, which I have identified in this case to be the claim for unpaid salaries, allowances and entitlements.
Long story short, the claimant has brought forward his cause of grievance against thisdefendant. He identifies a justiciable issue for determination. Hemay be entitled to a remedy. Having thussued through the normal court process of complaint and activated the jurisdiction of this court, I am nowduty bound to allow him ventilate this cause against his defendant. See SUIT NO. NICN/LA/173/2017:Alozie Chimezirim Manasse v.Sterling Bank PLC &1 other (per Hon. Justice B.B. Kanyip Ph.d, delivered on 18 February 2018). How he does so and whether he succeeds in the end, remains to be seen.
Overall, I find that the preliminary objection is without merit and the same is accordingly dismissed. Case shall proceed to trial expeditiously.
No costs awarded.
Delivered in Owerri this 13th day of May, 2019.
Hon. Justice Ibrahim Suleiman Galadima.