BEFORE HIS LORDSHIP: HONOURABLE JUSTICE I. S. GALADIMA
Dated: 3rdJune 2019 SUIT NO: NICN/OW/15/2019
MR SUNDAY AKOMA ------ CLAIMANT/RESPONDENT/APPLICANT
1. NATIONAL UNION OF the ROAD
2. ALHAJI NAJEEM USMAN YASIN
3. COMR. CLEMENT WETKUR DEFENDANTS/APPLICANTS/RESPONDENTS
4. ALHAJI SULEMAN A. DANZAKI
5. ALHAJI TUKUR MOHAMMED
6. COMRADE EUGENE JOB
C.C. Uhuaba for the claimant/applicant
U.S. Onyeoguzoro for the defendants/respondents
This ruling is in respect of 2 (two) Motions on Notice. First, is the one filed by the Defendants’ Counselon 24/5/2019, and the other filed by the Claimant’s on 10/4/2019. Before I rule on these motions, let me state that the Defendants were served with theClaimant’s motion for interlocutory injunction on 29/4/2019. By the 21/5/2019 when this suit was listed for mention, the Claimant’s motion was already ripe for hearing, and Mr.Uhuaba was minded to move and argue same. However, Mr. Onyeoguzoro, Learned Counsel for theseDefendants informed the court that he had just been briefed, and asked for 4 (four) days to file his processes in response.
On 24/5/2019, the Defendants rather than oppose the application for injunction by filing a counter affidavit, instead opted to file a separate motion seeking for an order dismissing or striking out this suit as well as the Claimant’s motion for injunction for purportedly being incurably defective, incompetent, and an abuse of this court’s process.The grounds for the Defendants’ application may thus be summarized as follows:
1. That the Complaint in this suit is not capable of initiating an action under Orders 3(1) and 4(1) of the NICN Rules;
2. The Complaint does not contain any relief and is not signed by a legal practitioner;
3. There is no valid originating process to which a statement of facts may be founded on;
4. Contrary to the Sheriffs and Civil Processes Act, the Claimant did not obtain leave to serve the Defendants who reside in Abuja — the Complaint is not endorsed for such service, and the NICN Rules cannot abridge the 30 days time-frame for defendants outside the Court’s territorial jurisdiction to enter appearance.
I shall first deal with the Defendants’ motion being one that challenges this court’s jurisdiction.
This said motion of 24/5/2019, is supported by an affidavit of 8 paragraphs to which one exhibit was annexed. I have read the depositions in the affidavit filed in support of this motion and also the submissions contained in the written address filed in support of same. I have also read the Reply on Points of law filed by the Claimant in opposing the motion.
Primarily, in the Defendants’ accompanying address, two issues were distilled thus:
1. Having regards to the provision of orders 3(1)(a) and 4(1)and(4)(3) of the National Industrial Court Rules, whether the purported complaint of the Claimant/Respondent by which this action is alleged to have originated does not rob this court of jurisdiction to entertain this suit?
2. Whether the failure to comply with the mandatory requirements of sections 96 – 99 of theSheriffs and Civil Processes Act(SCPA) does not rob this court of the jurisdiction to entertain this action?
Regarding issue one, Counselis of the view that the complaint served on the Defendants does not contain any relief and it was not signed by a legal practitioner, making the originating process incompetent warranting a striking out. Cases were relied upon by learned Counsel including BALA v DIKKO, FARO BOTTLING CO. LTD v OSUJI (all citations supplied).
On issue two, he argued further that the purport of order 7(15) and (16) are not to make the provisions of the SCPA inapplicable to this Court. The case of Owners of the MV Arabella v NAIC (citation supplied) was cited by counsel. He in conclusion, urged the Court to dismiss or strike out this suit. He also relied on IZEZE V. INEC (2018) 11 NWLR (Part 1629) to support his arguments whereupon he urged this Court to uphold his objection.
On his part,the Claimant’s Counsel in his response to the application on points of law filed on the 27/5/2019, argued as follows:
· On the issue that the originating processes are unsigned,that the pleadings were indeed signed by the Counsel to the Claimant and this question is a non starter. He asks me to take cognizance of the processes before me.
· On the issue that leave of this court must be first obtained before service of originating processes can be served out of jurisdiction of this court, the Defendants’ Counsel argued that by Order 7 rules 15 (2), no leave is required to serve processes within Nigeria. That as far as the NICN is concerned, all originating processes filed by any party before the court shall be served on any party in any part of the federation without leave of court. It is only where service is outside the territory of Nigeria that the leave of this Court is required. He adumbrated on this point in his oral submission in open Court by stating that I must be bound by my recent ruling in ABATAN V. SHANDEES NICN/OW/25/2019 where this similar issue was canvassed and quashed.
· On the issue of personal service, he said that the fact that these Defendants were served through their registered office in Abuja, suggests that the Claimant had complied substantially with Order 7 rule 1 (g) of the rules of this court.
· On the complaint not containing any reliefs or remedy, he said that the Claimant had complied with the rules of this Court and there is no contesting this issue. It is accordingly left for this Court to determine if this Claimant has a cause of action after hearing the cause before it.
· On the issue of not giving the Defendants up to 30 days to respond to the complaint filed in compliance with the Sheriff and Civil Processes Act, learned Uhuaba has pleaded that the complaint was filed and served on the Defendants within 14 days required under Order 30 rules 2 (1) and (2) of this Court’s rules and they had 23 days until 21/5/2019 — the date given by this Court initially for the determination of the pending interlocutory application. He urges on that this Court must not allow technicality to defeat the ends of justice and as such, wants me to refuse the Defendants’ application.
The Claimant’s Counsel was then given leave to move and argue his pending application whichis for “an order of interlocutory injunction restraining the Defendants either by themselves or through their agents from interfering, disturbing, obstructing or preventing the Claimant from performing his functions as the State’sChairman of the National Union of Road Transport Workers, Abia State Council pending the determination of the substantive suit.
The motion which was filed on 10/4/2019, is supported by a 32 paragraph affidavit, to which 5 exhibits were attached. In the accompanying address, one issue was identified for determination, thus: “Whether the applicant has satisfied the basic requirements of the law to be entitled to the relief sought?”
In his argument, learned Counsel stated that an injunction is an equitable remedy to preserve an established right. Accordingly, a court in exercising its discretion to either grant or decline it, is expected to consider the well established principles of whether there is a serious issue(s) to be tried, the balance of convenience on the applicant’s side, inadequacy of damages for applicant’s injury, irreprehensible conduct of Defendants, and the undertaking as to costs.
In submitting on the above principle of this legal right, Counsel stated that the Claimant’s depositions in the supporting affidavit satisfy this condition. Furthermore, Counsel stated that the balance of convenience is in favour of the Applicant, and that the Defendants’ act of trying to usurp his official functions, had meted great detriment to him —OYEYEMI v IREWOLE LG (citation supplied) was cited and relied upon.
Counsel submitted further that the Applicant has accordingly shown in his affidavit in support especially at paragraphs 20 to 23, that damages will not be adequate to compensate himfor the wrong done to him, and the applicant has not delayed in bringing this application. Also, it iscontended that the Claimant has shown in paragraph 29 of the affidavit in support that he is ready, able and capable of satisfying any undertaking as to damages in the event that any interlocutory Orders obtained by him is found to be unmeritorious by the Court. See KOTOYE v CBN(citation supplied).
In establishing the irreprehensive conducts by this Defendants, learned Counsel in his oral submissions before me directed my attention to the suit instituted by the 6th Defendantas MAN/MISC.29/2019 purportedly in a representative capacity as caretaker of NURTW Abia State Chapter, at the Magistrate Court in Aba North of Abia State whereat an order issued by Mr. E. E. Onuoha, Chief Magistrate Grade 1 compelled the Commissioner of Police, Deputy Commissioner of Police and one IfeyinwaOdo to release forthwith and on bond to the applicant, Eugene Eze Job (the 6th Defendant here), two vehicles which were detained by the State Criminal Investigation Department, Umuahia pending the determination of Police Investigations. The said Order was made on the 10/5/2019 when this suit was already pending before this Court. Thelearned Mr. Uhuaba tendered from the bar a copy of the Order by the Magistrate Court which was though objected to by the Defendants’ Counsel but rightly allowed by this Court for the purpose of determining these applications.
Finally, Counsel submitted that the Claimant has fulfilled all the conditions stipulated by law for the grant of an order of injunction, the purpose of interlocutory injunctions being to preserve status quo. This Court is urged to preserve the status quo ante bellum which hitherto existed before the 2nd and 3rdDefendants’ letter of suspension dated 3/4/2019. Heurged the Court to exercise its discretion in favour of the Claimant and grant the Order of interlocutory injunction.
The further affidavit filed by the Claimant as deponent on the 13th of May, 2019 is an abuse of this Court’s process since it was not in response of any counter affidavit by the Defendants. The same is outrightly disregarded for the purpose of determining these applications and struck out accordingly.
Both motions were adopted and moved on the 27/5/2019 and adjourned to today, 3/6/2019 for pronouncement of this here ruling.
As stated earlier, the Defendants’ motion shall be considered first as it touches on the court’s jurisdiction to hear this action. There are two pertinent questions to be answered in resolving the Defendants’ contentions, which are:
1. Whether the leave of court ought to be obtained to issue and serve the Complaint in this suit in Abuja, and whether the complaint needs to be endorsed as required by section 97 of the Sheriffs and Civil Processes Act?
2. Whether the Complaint is incompetent because it contains no relief, and was not signed by the Claimant or his Legal practitioner?
In determining this question, let me first pointout that the cases of SKENCONSULT (NIG) LTD vs. UKEY, OWNERS OF MV ARABELLA V NAIC etcetera relied on by counsel to the Defendants in his arguments on this issue are cases where the originating processes were either issued by the State High Court or Federal High Court and the rules of those Courts came under consideration. I do not think the principle of law in those cases will apply to this case. This is because going by the National Industrial Court Act and the Rules of this Court, a different position is obtainable with respect to the originating process of this court. Section 21(1) of the National Industrial Court Act 2006 provides:
“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”.
This above provision makes it very clear that the whole of the Federation of Nigeria is a single jurisdiction for the National Industrial Court. This Owerri Division is for administrative convenience only, and as such, it does not have exclusive territorial jurisdiction restricted to Imo State. Therefore, service of the processes of this court on the Defendants in Abuja is not service out of jurisdiction as to require the leave of the court to issue and serve the complaint on the Defendants. Leave of this court is only required to serve the process of this court on a Defendant who is out of jurisdiction of this court, that is, outside the territory of Nigeria. Going by this position, it thus implies that processes issued from this court to be served within Nigeria do not require the endorsement in Section 97 of Sheriffs and Civil processes Act.
Besides, very recently, the Supreme Court took flight away from their decision in the Owners ofMV ARABELLA case when it decided in JOHN HINGAH BIEM V. SDP AND 2 others (SC/341/2019) that as far as service of processes within Nigeria is concerned, the SCPA does not apply to the Federal High Court. It went on to emphasize that the MV ARABELLA case was based on the 1976 rules. Again, the apex Court said that the case of IZEZE V INEC (Supra) relied upon by the Defendants/Applicants/Respondents here, was given per incuriam because sections 9, 19, and 44 of the Federal High Court Act and Sections 252 and 254 CFRN 1999 were not considered in that case.
This issue raised by the Defendants with respect to the applicability of the provision 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 issue into another State has received judicial pronouncements in several rulings and judgments of this court. It has become elementary law that the service of the processes of this Court on any Defendant in other States is not service “outside” jurisdiction as to require the endorsement under Section 97 of the Sheriffs and Civil Processes Act or the need to seek leave to issue and serve the Complaint in another State. I have similarly expressed the same view in my recent ruling delivered on13th May 2019 in suit No. NICN/OW/25/2018 between TIMOTHY ABATAN vs. SHANDEES FAST FOOD RESTAURANT LTDwhich was rightly cited and relied upon by the Claimant’s Counsel.
Therefore, in view of the above 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 and the nationwide jurisdiction conferred on this court in Section 21 of the NIC Act, I find that this ground of the Defendants’ motion lacks any merit.
On the second issue, these 1st to 6thDefendants contend that the Originating Complaint was not signed by the Claimant or his Legal Practitioner. According to the Applicants, neither the Claimant, who purported to have taken out the Originating Complaint nor his Legal Practitionersigned the processes.
This issue can be resolved by determining whether or not the complaint is in compliance with the Rules of this Court. In determining this, various provisions of the NIC Rules 2017 will need to be called to aid.
Order 1(10)(2) of the NICN Rules 2017 defines an Originating process to mean “a complaint or originating summons or any other court process(es) by which a suit or action is initiated before the Court”. Order 3(1)(a)provides that: “Civil proceedings in the Court may be commenced by Complaint as in Form 1”. Order 3(9) indicates that “the complaint shall be accompanied by a statement of facts establishing the cause of action, copies of every document to be relied upon at the trial, and the list of witnesses to be called.”
The cumulative effect of all the provisions cited above is that the originating process is made up of all the processes stated in Order 3 Rule 9. The complaint is not a document that can exist in isolationsimplicita. Assuming without holding that the Complaint was not signed, a cursory look at the Complaint itself reveals that it was issued in compliance with Form 1 being the general form of complaint as provided for by the Rules of Court. The said Form 1 makes no provision for the signature of the Claimant or his legal practitioner but that of the Registrar of the Court. Once the statement of facts, the list of documents and the list of witnesses to be called at the trial are appropriately signed and stamped by the solicitor, then Order 4(1) and(3) of the Rules has been complied with. See the decision of the National Industrial Court in UZOIGWE M. C. & OTHERS vs. AGBOEZE& OTHERS (2011) 22 NLLR (Pt. 63) 443 @ 445.
Further, the complaint in this suit using the format in Form 1 contains the reliefs sought by the claimant. I find that the originating processes have been duly filed and in compliance with the Rules of this court. The second issue must be resolved in favour of the Claimant.
A fortiori, it is my considered view that the originating processes in this suit are valid and competent, thereby making this court fully seised with the jurisdiction to hear and determine this action. The relief sought therein are not only legible, but triable.Whether or not this Claimant shall succeed, remains to be seen.On the basis of my findings above, these Defendants’ preliminary objection is hereby dismissed entirely.
Now, I turn to consider the Claimant’s application, and isolate the one issue that needs to be resolved, thus: Whether from the affidavit evidence before the trial court, the Claimant/Respondent/Applicant made out a case warranting the grant of an interlocutory injunctive relief against the these Defendants/Applicants/Respondents?.
An application for interlocutory injunction seeks a discretionary remedy. It is settled law that all judicial discretions must be exercised judicially and judiciously.
The Applicant has identified a legal right which he seeks to protect —his capacity as Chair of the 1stDefendantunion, Abia State chapter. He alleges that the Defendants interfered with his capacity as Chair by suspending him and imposing a caretaker committee to oversee the union activities. These are equally the issues touching on the substantive suitwherein his purported suspension and the creation of a caretaker committeeare being challenged. Thus, this court’s order is sought to stop the Defendants from further acting and or interfering with the Claimant’s tenure of office.
I have looked at and considered the prayers in the motion for the injunctive reliefssought and I must say it is essentially what is sought as the third relief in the substantive suit, which is: “An order of the Honourable Court restraining the Defendants either by themselves or through their agents from interfering, disturbing, obstructing or preventing the Claimant from performing his functions as the StateChairman of the National Union of Road Transport Workers Abia State Chapter”.
It is a settled principle of law that in considering the grant or otherwise of an interlocutory injunction, the Court must restrain itself from deciding issues raised in the substantive suit. More importantly, the court must not at the stage of interlocutory proceedings, decide an issue in the substantive case. SeeOgunsola v Usman (2002) 14 NWLR (pt 788) 636 at 656-658.
Upon careful consideration of the instant therefore, I am not swayed to grant this interim injunctive restraint for the fear of delving intothe substantive action. It shall be in the interest of all parties concerned instead to concentrate on getting this case heard expeditiously instead. I must decline the application for interlocutory injunction.
Notwithstanding my stance, it is crucial that the status quo that existed following the indefinite suspension of the Claimanttill the 10/4/2019 when this suit was filed, be accordingly maintained until the determination of the substantive action.
To my chagrin, my attention was drawn on the 27/5/2019 when these applications were moved,to the fact that the 6thDefendant, while allegedly fully aware of the pendency of this suit and aided by his lawyers, filed an ex parte application at the Magistrate Court Aba North, to secure an order of release of certain buses purportedly owned by the 1st Defendant union butdetained by the Police — an action which only the State Chairman of the union can allegedly carry outas captured under the “functions of the StateChairman of the National Union of Road Transport Workers Abia State Council” — which power is one of the subjects of controversy in this suit.Whether the order of the Chief Magistrate E.E. Onuoha on the 10/5/2019 was in deed granted without jurisdictionbecomes a question of mixed facts and law which these parties’ Counsel must address properly before me in order to determine the proper course of action to undertake with respect to the said order; because from the Order of 10/5/2019 made by the Chief Magistrate, the Defendants against whom the orders command, are agents ofthe Police and the subject which is the reason for the order, are vehicles. This suit has not specifically sought for the repossession of any vehicles in the control or possession of these Defendants. The Chief Magistrate purportedly acted within his powers to determine criminal allegations against the drivers of those vehicles — or so it seems. As such, any ancillary orders in that regard, must be made cautiously. In keeping with the principles of law, since the res of the order have not been shown to be in peril of being destroyed, irredeemably damaged or stolen, I shall decline from commenting on the exercise of the Magistrate’s power in that direction for now. Suffice it to state however, that this Court shall not condone any parties resorting to any measures of self help to the detriment of this suit and the opposing side. Since these parties shall establish their various rights in this cause, it would be fair to ensure that the proceedings are commenced expeditiously and determined timorously.
Therefore, during the pendency of this suit, both parties must shield their swords of resorting to self-help. Any party opposed to attending to his case from the comfort of his home shall do so from prison when found to be in contempt of this court and these proceedings.
In view of the foregoing, a more appropriate course to take in this matter is to hear the substantive suit and determine all the issues in this case at once.
I hereby decline in granting the prayers sought in these motions and instead order accelerated trial of the substantive suit. Accordingly, I direct that this matter proceed to hearing at once. No order as to cost.
Delivered in Owerri this 3rd day of June, 2019.
Hon. Justice Ibrahim Suleiman Galadima.