IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: MONDAY 27TH JANUARY, 2020 Suit No: NICN/YEN/39/2019
OMOGBAI UMUAKHE ……………………. CLAIMANT/APPLICANT
RINGARDAS NIGERIA LTD …………………… DEFENDANT/RESPONDENT
Mr. Chukwuyem Atewe Esq for the claimant.
Mr. Stanley Miediakumo Esq for the defendant.
The Defendant/Applicant filed a Notice of Preliminary Objection on the 21st November, 2019. Where the applicant sought for the following reliefs:
a. AN ORDER of the Honourable court dismissing this suit on the ground that the suit is incompetent, and this Honourable court lacks the jurisdiction to entertain same.
Then the omnibus prayer. And the grounds upon which this application is brought are as follows:
a. The cause of action occurred in Abuja, FCT.
b. The claimant was based in Sapele, Delta State and worked at the Defendants’ terminal in Sapele, Delta State.
c. The defendant has no business office or terminal anywhere in Bayelsa State.
d. Since the cause of action arose in Abuja, the National Industrial Court, Yenagoa, Bayelsa State has no jurisdiction over the matter.
The application is supported by 6 paragraphs affidavit deposed to by one Simon Fashi Pius a Litigation Assistant in the Law Firm of P.A. Ameh & Co., the Law Firm representing the defendant. In the written address, counsel to the applicant formulated a lone issue for determination as:
Whether this Honourable court has jurisdiction to hear and entertain this suit in view of Order 2 Rule 1 of the NIC Act and Section 97 of the Sheriff and Processes Act.
In his argument counsel to the applicant posited that as shown in paragraph 5 of the affidavit in support of this application that from the statement of facts, the cause of action arose in Abuja, FCT, the Defendant/Applicant has a terminal in Sapele in Delta State and the claimant resided and worked with the defendant in Sapele, Delta State. That none of the incidents leading to the dismissal of the claimant took place in Bayelsa State. He referred to the case of NWANKWO VRS NNOZE-MADU (2009) 1 NWLR (PT. 1123) PG 703; OBARO VRS HASSAN (2013) ALL FWLR (PT. 687) PG 677 at 680.
Counsel further contends that the originating processes is not endorsed to the effect that it is served out of the state in which it is issued as required by Section 97 of the Sheriff and Civil Processes Act. He referred to the case of SENATOR JOY EMORDI VRS HON. ALPHONSUS UBA IGBEKE & 5 ORS.
Finally, counsel urged this court to dismiss this suit.
In opposing this application the Claimant/Respondent filed a 12 paragraphs Counter Affidavit and a written address. In his written address counsel to the Claimant/Respondent formulated a lone issue for determination as follows:
Whether the applicant is entitled to the reliefs sought.
Counsel stated that suits are filed in any of the judicial divisions of the court where the defendant resides or has presence or carries on business. He said the respondent has shown in paragraphs 6 -10 of his counter affidavit that the defendant carries on business in Sapele, the claimant was employed and dismissed in Sapele, thus its the Yenagoa Division of this court that has jurisdiction to entertain this matter. Referred to Order 2 Rule (3) (b) and Order 2 Rule 12 of the rules of this court.
He said commencing a suit in a wrong division does not warrant a court to dismiss same. He cited Order 2 Rule 3 Sub- Rule 5 of the Rules of this court.
On the second leg of the applicant’s preliminary objection that the writ was not endorsed before service outside jurisdiction, counsel submits that by Order 7 Rule 15 sub-rule 1 of the Rules of this court that the National Industrial Court has one jurisdiction throughout the Federation of Nigeria and that its only divided for administrative convenience. And that by Order 7 Rule 15 (2) of the Rules of this court all originating processes or other processes filed by any party before the court shall be served on any other party in any part of the Federation without leave of court.
On the basis of all these, counsel urged this court to refuse the application.
I have painstakingly perused all the processes filed by the respective parties including the averments contained in both the Supporting and Opposing Affidavits; I have also analyzed the arguments canvassed by both parties, and once an issue of jurisdiction is raised by any party in a suit the court must retreat and dropped its armour to decide the issue of jurisdiction in one way or the other because jurisdiction is the blood that gives life to an action in the same very way that blood gives life to human beings and the animal race. See DOSUNMU VRS A.G LAGOS STATE.
Having said that, the applicant raised two issues as follows:
a. That the cause of action accrued in Abuja, FCT and not in Yenagoa and that the applicant has no any place of business or office address in Yenagoa.
b. That the originating processes were not endorsed for service outside jurisdiction and thus rendered same incompetent.
In other to effectively and effectually decide this application I formulated a lone issue for determination to wit:
Whether from the circumstances of this suit and the processes filed, this court has jurisdictional vires to entertain this suit.
On the 1st leg of argument that the cause of action did not occur in Yenagoa and thus this court has no jurisdiction to entertain same, by the combined effect of Order 2 Rule 3 (b) and Order 2 Rule 12 one can see that suits can be filed in any of the judicial divisions of the court where the defendant resides or has presence or carries on business. And from the counter affidavit filed by the Defendant/Applicant himself in paragraphs 6 -10, the claimant avers that the defendant do carries on business in Sapele and that the claimant was employed and dismissed in Sapele, Delta State. And these averments remained uncontroverted by the Defendant/Applicant. And facts admitted need no further proof. See Section 123 of the Evidence Act, 2011. Infact the defendant even admitted that the defendant has a terminal in Sapele, Delta State. And this court being the nearest division to Sapele Delta State by the combined provisions of Order 2 Rule 3 (b) and Order 2 Rule 12 of the Rules of this court the claimant can conveniently institute this action before the Yenagoa Division of this court. I so hold.
Moreover, by the provisions on the second leg of Order 2 Rule 3 Sub-Rule 5 of the Rules of this court provides that where any suit is commenced in the wrong judicial division, it may be tried in that division unless the President of the court otherwise directs. Therefore, the only available option to the defendant is to write to the President seeking for the transfer of this matter but not to file an application for dismissing this suit. I so hold.
On the second leg of the argument that the complaint was not endorsed for service outside jurisdiction, by the provisions of Order 7 Rule 15 (1) of the NICN Rules 2017 and Order 7 Rule 15 (2) the National Industrial Court of Nigeria has one jurisdiction throughout the Federation of Nigeria, and its only divided by the President of the court in to Judicial Divisions or Registries for adjudicatory and administrative convenience. And that all originating processes or other processes filed by any party before the court shall be served on any party in any part of the Federation without leave of court. Therefore, the claimant does not require to endorse the complaint before serving same on the defendant. I so hold.
In all, I resolved the only issue for determination in favour of the Claimant/Respondent, I hold that this court has the jurisdictional vires to entertain this suit. The preliminary objection is hereby dismissed. I declined to award any cost.
HON. JUSTICE BASHAR A. ALKALI
NATIONAL INDUSTRIAL COURT OF NIGERIA