IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORTHARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/PHC/39/2019
DATE: DECEMBER 09, 2019
KASSEM TAY - CLAIMANT/
[Suing through his lawful attorney Tonye D. Wilson] RESPONDENT
PROVITA VITAFORCE FOODS NIGERIA LIMITED - DEFENDANT/
Tonye Wilson, Esq.,(with him J.N Wariboko, Esq. and M.M Solomon, Esq.)
-for the Claimant/Respondent;
Femi Falana SAN (with him C.E Onyebukwa, Esq.)
-for the Defendant/Applicant.
By a General Form of Complaint with other frontloaded court processes dated and filed on 21st March 2019, the Claimant/Respondent, through his lawful Attorney, instituted this Suit,basically challenging alleged wrongful termination of his employment, among other sundry reliefs/claims, againsthis former employer, the Defendant/ApplicantCompany.
Upon service of the court processes, the Defendant/Applicant, caused appearance to be entered on its behalf by its Solicitors; the law firm of Falana&Falana, who filed a Memorandum of Conditional Appearance along with a Notice of Preliminary Objection, both dated 9th May 2019 and filed on 10th May 2019, challenging the jurisdiction of this court, on the basis of lack of compliance with S.99 Sheriff and Civil Process Act and violation of the provisions of S.36(1) Constitution of the Federal Republic of Nigeria (As Amended).
Filed also is a 9-paragraph Affidavit in Support of the Notice of Preliminary Objection deposed to on the same 10th May 2019 at the Registry of this court by one Okoko Mark, Esq., a Legal Practitioner in the Defendant/Applicant’s Solicitors’ firm. A written Address dated 9th May 2019 and filed on 10th May 2019 was also filed, wherein counsel raised a sole issue for determination and canvassed arguments in support thereof.
On his part, the Claimant/Respondent reacted with a 10-paragraph Counter-Affidavit deposed to on 17th May 2019at the court’s registry by the said Claimant’s lawful Attorney, Tonye D. Wilson. Also filed in opposition to the Notice of Preliminary Objection is a Written Address dated and filed on 17th May 2019, where counsel canvassed contrary arguments in opposition to the challenge of the jurisdiction of this court by the Defendant/Applicant.
Given that an issue of jurisdiction being a threshold matter needs to be determined at earliest opportunity, the Notice of Preliminary Objection was set down for Hearing at the proceedings of 16th October 2019. Arguments were taken from both counsel and Ruling reserved.
Moving the Application, learned Senior Advocate for the Defendant/Applicant, Femi Falana SAN, introduced the said Notice of Preliminary Objection, and submitted that it is basically challenging the jurisdiction of this court, and anchored his submissions on the provisions of S.99 Sheriff and Civil Processes Act (SCPA) and S. 36(1) of the Constitution of the Federal Republic of Nigeria (As Amended), both of which were infringed upon by the Suit of the Claimant as aided by the Rules of this Court. Counsel adopted his Written Address and pointed that he appeared in protest vide the Memorandum of Conditional Appearance dated 9th May 2019 and filed on 10th May 2019.
Counsel noted that the sole issue slated for determination is – whether the non-compliance with provisions of Section 99 of the Sheriff and Civil Process Act Cap 86 LFN (SCPA) and Section 36(1) of the Constitution of the Federal Republic of Nigeria is not fatal?To counsel, the gravamen of the entire submission is that this court is called upon to resolve the conflict between the provisions of the National Industrial Court (Civil Procedure) Rules 2017 ( Rules of this Court) requiring a Defendant to a suit to enter appearance within 14 days as against 30 days stipulated by S.99 of the SCPA. Counsel submitted that such a conflict should be resolved in favour of the SCPA.
According to the learned SAN, the basis being that in hierarchy of laws, it is trite law that the Acts of National Assembly takes precedent over Rules of Court, which are ranked as Subsidiary Legislation. Counsel pointed that the SCPA has in mind all courts, as S.2 SCPA covers all courts where originating processes are filed, not just Magistrate Courts or High Courts or limited to Writ of Summons, but other courts and other originating court processes, by whatever name called. Counsel cited and relied on CBN v. InterstellaComm.Ltd  7 NWLR (Pt. 1618)294 SC, wherein the Supreme Court held that Garnishee Proceedings is an originating process to which S.99 SCPA applies to. Also, in Emeka v. Okoroafor 1WRN 1@ 100, the Supreme Court also held that S.99 SCPA applies to Fundamental Rights cases , and that SCPA takes precedent over Fundamental Rights Enforcement Rules, which provides for 7 days instead of 30 days stipulated by S.99 SCPA. Counsel urged the court to grant the Application and strike out the Suit for the fundamental non-compliance with SCPA.
From the side of the Claimant/Respondent, learned counsel, adopted the averments in the 10-paragraph Counter-Affidavit filed and submissions in the Written Address dated and filed on 17th May 2019 in opposition to the Defendant/Applicant’s Notice of Preliminary Objection challenging the jurisdiction of this court. While conceding that jurisdiction is a fundamental issue of which court must be satisfied of before proceeding to adjudication, learned counsel however, maintained that the preliminary objection is misconceived, and should be discountenanced.
The crux of counsel’s argument is that this court is a Specialized Court designed to dispense justice within areas of its competence as quickly as possible. That the National Industrial Act (NICA) 2006 in S.36 empowered the President of this court (PNICN) to make Rules to give effect to the provisions of the Act (NICA). And that it is in exercise of the statutory power that the NICN (Civil Procedure) Rules 2017 (Rules of this court) being challenged. Referring to Or.3 R.1 of the Rules of this court, counsel pointed that proceedings against any party can be commenced by Complaint in Form 1. And thatin the Form 1, 14 days is the time provided for the Defendant to respond to the Suit, and that is what the Claimant has done and the Defendant was expected to respond accordingly.
Counsel argued that being a provision of the Rules of this court, it is meant to be obeyed, and that it is in the best interest of justice. Counsel further contended that what the Application seeks to achieve is an invitation for the court to overrule its own Rules. He urged the court to dismiss the Application and proceed with the Suit.
I have reviewed the processes filed and exchanged by both counsel as well as arguments canvassed, for and against this pertinent Preliminary Objection. The Defendant/Applicant emphatically challenges the jurisdiction of this court. The Objection contests the validity of the originating process served on the Defendant/Applicant in this Suit with endorsement to enter appearance within 14 days of service of the Complaints,as prescribed by the extant Rules of this court.
In my view, in considering this Application, the crucial issue that reared up for determination is - Whether the provisions of the extant Rules of this court is valid in view of the alleged non-compliance with the Provisions of S.99 of the Sheriff and Civil Processes Act (SPCA) and S.36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended)?
It is imperative to set out the provisions of the relevant statutes/rules relating to the Application under consideration. The S.99 Sheriff and Civil Processes Act (SCPA)dealing with time limited for answering of summons, provides that:
“The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period”.
The S.36 (1) Constitution of the Federal Republic of Nigeria 1999 (As Amended), relating to Right of fair hearingstates that:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
The Or.9 R.1 (1) National Industrial Court (Civil Procedure) Rules 2017 (Rules of this court/ NICN (CP) Rules), which prescribes time limit to enter appearance by Defendant, states that:
“Every person served with an originating process shall, within the time stipulated therein and if no time is stipulated shall within fourteen (14) days of the service of the originating process, file a Memorandum of Appearance in the Registry of the Court”.
Or. 3 R.1 (a) NICN (CP) Rulesprescribes use of Complaint in Form 1 as a mode of commencement of civil Suit, as in the instant Suit. The Form 1 contains an endorsement which reads thus:
“You are hereby commanded that within fourteen days after the service of this Complaint on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of …, and take notice that in default of your so doing the Claimant may proceed therein, and judgment may be given in your absence”.
It is this endorsement that is the target of the preliminary object as it reflected the 14 days in the Complaint served on the Defendant/Applicant. Arguments where canvassed by the learned SAN to the effect that there is a conflict between the provisions of the S.99 SCPA which prescribes minimum of 30 days and not less and this endorsement of 14 days prescribed by the Rules of this court and endorsed on the Complaint served on the Defendant/Applicant. Learned SAN had called on this court to resolve the conflict in favour of SCPA, being a Statute as against the Rules of this court, being subsidiary legislation, following the pattern done with the Fundamental Rights Enforcement Procedure Rules which prescribed 7 days but was struck down by the Supreme Court in Okoroafor’Case (supra), for being inconsistent with S.99 SCPA.
I will quickly state that I share the view of the school of thought which holds that though Industrial Court is a specialized court, its originating processes, by whatever name called, is equivalent to Writ of Summons,with similar characteristics as originating court process. To that end, I agree with the learned SAN that Writ of Summons in use in regular courts is of equivalent status and feature as Complaint in use in this court, as both are originating court process, deployed for contentious claims litigation. I so hold.
Having settled the status of Complaint as an Originating court process of equivalent feature as Writ of Summons, the core issue in dispute is as to whether the Rules of this court can make such prescription of less than 30 days and remain valid when juxtaposed with the 30 days prescription in S.99 SCPA? In my view, the source and purpose of the Rules of this Court would aid the resolution of this rearing issue underpinning the dispute in this Application. From historical perspective, the extant Rules of this court came into effect on 3rd January 2017, following the 3rd Alteration 2010 of the Constitution of the Federal Republic of Nigeria 1999, effective 4th March 2011. The said Alteration fundamentally repositioned this court and imbued it with status of superior court of record duly listed among other superior courts of record in S.6 thereof. It has then started functioning as such.
By that Constitutional Alteration, this court has fore-footed its expanded mandate as a specialized court with exclusive jurisdiction on all aspects of civil litigation relating to employment, industrial and labour disputes and matters connected thereto. S. 254F(1) of the said Constitution provides that :
“Subject to the provisions of any Act of National Assembly, the President of the National Industrial Act may make rules for regulating the practice and procedure of the National Industrial Court”.
The National Industrial Act (NICA) 2006, an Act of the National Assembly in S.36 (1)(a) further provides that:
“The president of the Court may make Rules of Court for carrying into effect the provisions of this Act, and in particular- (a)-regulating the practice and procedure of the Court, including all matters connected with the forms to be used and the fees to be paid”.
It is in furtherance of the afore-stated Constitutional and Statutory provisions that the Hon.PNICN made the extant NICN (CP) Rules 2017. The general provisions of the SCPA has now been found by the learned SAN to be in conflict with the specific provisions of the Rules of this court, and has challengedsame, and asked that the Rules of this should give way, despite the trite principle that each court is bound by its own Rules as much as all parties and counsel appearing in that court. See: MC Inv. Ltd v. C.I & C.M Ltd 12 NWLR (Pt.1313)SC1@p.17 para. A-B, wherein the Supreme Court held that:
“Rules of court regulate matters in court and help parties to prosecute their cases to achieve fair hearing and quick dispensation of justice. They are made to be complied with by parties to a suit and by the courts. Accordingly, any party who fails to obey the rules of the court, such as appellants did in the instant case, cannot be heard to complain”.
It is noteworthy that a key idea of setting of specialized court is to cloak it with specialized procedures to fast track its proceedings to ensure the realization of the very philosophy that enabled its creation. To my mind, the essence of specialized court would be defeated if the so called specialized court is still kept in and enmeshed in the shackles of old procedural rules which led to clamour for and creation of such court/tribunal. To say that a specialized court is subject to the general provisions of statute whereas it has its own specific provision on the subject matter would just amount to ‘making a distinction without a difference’. In my view, there must be essence of creating and cloaking a court as specialized court in terms of having peculiar provisions in its Rules to achieve the core objective of setting up such court, as the NICN.
I retain the same view which I held inYusufYahaya v. FRSC(Yusuf Yahaya’Case)(Suit.No:NICN/YL/06/2014, Ruling of which was delivered on December 7 2007), while construing conflicting provisions of S.97 SCPAwith Or.17 R.15(1)(2) Rules of this court on requirement for leave to serve originating processes across Nigeria, to the effect that the general provision of the SCPA cannot override the specific provisions of the Rules of this Court which derives its force directly from the Constitution and its enabling Statute; the National Industrial Court Act (NICA)2006, pursuant to the powers conferred on the Honourable President of the Court by S.254(F)(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by the Third Alteration Act 2010) and enabled by S.36 of the NICA Act 2006.In Integrated Data Services Ltd v. Adewumi(2013) LPELR-21032(CA), it was held that where there is a specific law and a general law on the same issue, it is the specific law made on the issue that will prevail. See also: NDICv.Okem Enterprises Ltd & Anor. (2004)4SCNJ244.
In the Yusuf Yahaya’Case, I had the occasion to review the Rules of this Court regarding application for leave to service process out of jurisdiction (within Nigeria) and provisions of S. 97 SCPA. I took the view and held that by virtue of the extant Rules of this court no such leave is required for service of court process in-between States in Nigeria, as Industrial Court has one territorial jurisdiction throughout Nigeria. This position was arrived at after strenuouslydistinguishingthe Supreme Court decisions in Owners of M.V Arabella v. NAIC  11 NWLR [pt.1097]182 (M.V Arabella) and Drexel Energy and Natural Resources Ltd & 2 Ors. v. Trans International Bank Ltd &Ors.  18 NWLR [pt.1119]388 (Drexel Energy).Interestingly, in later Supreme Court Cases inAkeredolu v. Abraham (2018) LPELR-44067(SC) and John HingahBiem v SDP & 2 Ors. SC/341/2019, the effect of MV Arabella (supra), requiring leave to serve originating process across various States of Nigeria,was departed from and abolished.
I have once again been confronted with the mandate to construe the sister provision to the S.97 SCPA. This time the provisions of S. 99 SCPA, prescribing 30 days for Defendant’s Appearance, which is in apparent conflict with the provisions of the Rules of this court providing for 14 days within which the Defendant should enter appearance. Embarking on this adjudicative assignment, I am also mindful of the authority of Okoroafor’Casecited and relied on by the learned senior counsel,wherein the Supreme Court was said to have struck down the 7 days provisions in the Fundamental Rights (Enforcement) Rules. Learned SANin his submissions stoutly invited this court to so do in respect of the Rules of this court.
Facing such superior decision of the apex court, calls for closer scrutiny of the authority and the factual circumstances of the case at hand. To rigor out of the stiff-web of the judicial precedents, again, solace is only taken by the application of the principle of ‘distinguishing’, to the effect that ‘a previous case is only binding in a later case if the legal principles involved is the same and the facts are similar’. On this note, I take the leeway to distinguish the authority of Okoroafor’Case relied on by the learned Senior Counsel for Defendant/Applicant. I have read a full text of the Supreme Court’s Judgment in the Okoroafor’Case reported as Emekav.Okoroafor 11NWLR (Pt.1577)410SC. Reading through the gamut of the lead Judgment by my Lord, Kekere-Ekun JSC, concurred by the my Lords Mary Peter-Odili, Kumai Aka’Ahs, Chima C. Nweze and EjembiEko, JJSC., I am unable to find where the issue of the validity of 7 days return date for defence appearance was raised and resolved in that case, which would constitute a binding precedent in this court at lower ladder of stare decisis. Though the matter dealt with appropriate use of Fundamental Rights (Enforcement Procedure) Rule, nothing was raised or resolved regarding length of period within which the Defendant would enter Appearance. The nearest issue that came on service of the court process relates to effect of non-service of court process on jurisdiction of court and challenge of Affidavit of Service by Bailiff.
This apparent mix-up in the ratio of the Okoroafor’Case as a relevant authority on this issue under consideration, underscores the need for counsel and the Judge to personally review aptness of any authority being trumpeted and cited to resolve a nagging issue of law in judicial proceedings.
It remains to analyze the impact of reliance on S.36 (1) Constitution of the Federal Republic of Nigeria (As Amended), as grounding the preliminary objection. In other words, in what manner has the Rule of this court prescribing 14 days within which a Defendant should enter appearance affected or infringed on S.36(1) of the Constitution? Put differently, is 14 days not ‘reasonable time’ within the meaning of the said S.36 (1) of the Constitution? Again, what is measure of ‘reasonable time’, even in the context of S.99 SCPA prescribing 30 days for Defendant to enter Appearance in a suit?
Upon review of the 9-paragraph Affidavit in Support of this Application, nothing was said on how the provision of the Rules of this court affecting the Defendant’s right to fair hearing in the instant suit against it. The closest averment is in paragraph 7, which states: “That the Defendant was also not accorded fair hearing within reasonable time as provided for in the 1999 constitution of the Federal Republic of NIGERIA as amended”.
I find this averment as speculative and academic, as no material or factual explanation was averred to throw more light as to how such right of fair hearing was denied the Defendant. It is did not show how the rule has worked miscarriage of justice in a suit that has not even yet been tried. Paradoxically, the Defendant/Applicant who complained of 14 days rule within which to enter appearance and prefers 30 days has spent more than 30 days pursuing an argument to give it 30 days to appear.
I find that the Rule regarding Appearanceof Defendant invariablydoes not affect the Rule of Filing Defence and presenting Defence at trial. There are ample provisions in the extant Rules of this court for extension of time or even setting aside Judgment obtained in default of appearance or defence, which are available and aimed at ensuring fair hearing and hearing a matter on the merits. With these safeguards of fair hearing laced all over in the Rules, I find no supporting basis to yield to the call by the learned SAN to tilt-down the provisions of the Rules of this Court regarding 14 days requirement for a Defendant to enter Appearance upon service of originating court processes in a suit in this court. I so hold.
In my considered view, I hold that the requirement for Defendant to enter Appearance in a Suit in this court within 14 days of service of the originating court process is valid. In the circumstance, I find no merit in this Preliminary Objection. It is accordingly refused and dismissed. I so hold.
The Suit is to procced, and is hereby set down for Trial on 28th January 2020.
Ruling is entered accordingly. I make no Order as to cost.
HON. JUSTICE N.C.S OGBUANYA