IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 13th November 2017
SUIT NO: NICN/OW/10/2017
Mrs. Silverline Nwadiogor - Applicant
(Administrator of Late Allen Nwadiogor Estate)
1. The Nigeria Social Insurance Trust Fund
2. The Managing Director,
(Nigeria Social Insurance Trust Fund) Respondent
3. Rivers State Manager,
(Nigeria Social Insurance Trust Fund)
D. I. G. Ahiakwor, with him, N. I. Ogoko, for the Applicant
A. C. Nwalozie with the brief of A. N. Onyeka for the Respondent
By a Motion on Notice filed on the 9th day of February 2017, the applicant, suing as the administrator of the Estate of late Allen Nwadiogor, brought this action in which she sought the following reliefs:
1. An order of mandamus compelling the Respondents to pay to the estate of late Allen Odiwe Nwadiogor all the contributions of late Allen Odiwe Nwadiogor from the date of first contribution into the fund till the last contribution.
2. Twenty Five percent (25%) interest per month from the date of the judgment until the entire sum is finally liquidated.
3. And for such further orders as this honourable court may deem fit to make in the circumstances.
The motion, which was brought under Sections 254 (1), 6 (6) of the 1999 Constitution (as amended); Section 17 (1), (2) of the NIC Act 2006, Order 48 Rules 3 (4) and 8 and Order 11 Rule 10 of the NICN Rules 2017, was supported by a 21 paragraph affidavit deposed to by Miss Happiness Nwadiogor, the only daughter of late Allen Nwadiogor; some exhibits and a written address. In the accompanying written address, counsel formulated one issue for determination to wit:
Whether having regard to the verifying affidavit evidence before this
Honourable Court including the Statement, this court ought to grant the
Claimant/Applicant the order as pleaded.
Learned Counsel for the Applicant in arguing the sole issue for determination reproduced the provisions of Order 22 Rule (1) (2) (3).
The Applicant’s counsel contended that the facts deposed to in the verifying affidavit in support of the application are sufficiently cogent to sustain a grant of the prayers sought. According to counsel, the Respondents are holding unto the retirement benefits of the Late Allen Odiwe Nwadiogor, and had issued invitation letters to him before his death to come and collect his benefits. The Respondents are therefore estopped from denying the existence of these facts. Counsel cited the provisions of Section of the 167 Evidence Act in support of this contention.
Counsel relied on the case of Chief Olusegun Ani vs A.G. Federation (2012) 3 NMLR where the Supreme Court held that 'An order of mandamus is not a mechanical relief that slavishly follows the filing of an application even where a case falls into one of the categories in which judicial review will lie, that court is not bound to grant it because the jurisdiction to make any of the orders available in proceedings for judicial review is discretionary. The court may refuse to make the orders unless it has been shown that a distinct demand for the performance of the duty has been made and the demand has deliberately not been complied with '.
Counsel submitted that the distinct demand of the Applicant is that he has complied with all the terms of the Respondents' dictates. Also, the money is with the Respondents. Exhibits A-F show that the money is available and ready for collection. Counsel submitted that the Respondents are therefore estopped from denying it (See Section 169 Evidence Act); and that the Applicant should be allowed to reap the fruit of his labour.
Counsel went on that the order of mandamus is one of the prerogative powers of the court to compel someone to do an act. Order 22 Rule 1 of the National Industrial Court (Civil procedure) Rules 2010, makes provision for the granting of orders. Counsel argued that by implication, having fulfilled the requirement of the rules, the discretion of the court ought to be exercised in favour of the Applicant. Counsel referred the court to the case of Shitta Bey vs. Federal Civil Service Commission (1981) 1 SC 40 where an order of mandamus was held to be appropriate to compel the Commission to re-instate the application into the Civil Services from which he was compulsorily retired.
According to counsel, from the affidavit evidence put forward, it has become clear that the Applicant has put a lot facts to bear on the need to grant the order for the Respondent to pay the Applicant the entitlement, which the Respondent holds in trust for the Applicant. The essence of the creation of the institutions of Government is to forestall the likelihood of the breakdown of law and order. This according to counsel, is one of the foundations upon which the doctrine of the Rule of Law is laid.
Counsel urged the court to grant the application as prayed.
The Respondents, on 29th September 2017, filed a counter affidavit to the Applicant’s Originating Motion. The counter affidavit, which contains 9 paragraphs, was deposed to by one Offiong Akogu, a legal practitioner in the law firm of Hilltop Solicitors.
Before then, the Respondents had filed a Notice of Preliminary Objection on 5th April 2017 challenging the jurisdiction of the court to entertain the action. On 30th June 2017, this court made an order consolidating the substantive motion and the Notice of Preliminary Objection and directed that the applications be heard together. The applications were heard on 5th October 2017.
In the Respondents’ Counter Affidavit and Written Address in opposition to the Originating Motion, Counsel reiterated the Respondents’ Preliminary Objection and added that that the action is incompetent because the seal of the legal practitioner who took out the originating process is not affixed. Counsel relied on the Supreme Court’s decision in Yaki vs. Bagudu (2015) 18 NWLR Pt. 1491, 288 @ 344, Para C-D and submitted that non-Compliance with Rule 10(2) of the Rules of Professional Conduct 2007 renders the process incompetent.
Counsel also went further to raise an issue for determination, the sum of which is that the Applicant has not proved the existence of or his entitlement to the relief sought, the nature of the relief sought is vague and unclear, and both the Applicant and the deceased are unknown to the Respondents. The court cannot therefore speculate. Counsel urged the court to dismiss the action as lacking in merit.
Counsel for the Applicant in answer to the issue of stamp and seal, while adopting his processes on 5th October 2017, informed the court that he had affixed his stamp and seal. The court upon perusal of the processes in the file, saw that the processes had the lawyer’s seal affixed to them.
In the ruling of today, I will first deal with the Respondents’ Notice of Preliminary Objection before any consideration can be given to the Originating Motion.
In their Notice of Preliminary Objection, the Respondents pray the court to dismiss or strike out the Applicant’s originating motion for reason of want of jurisdiction on the part of the court. The grounds advanced on the Notice of Preliminary Objection for the lack of jurisdiction are:
1. The originating process is brought in violation of Section 97 of the Sheriff and Civil Process Act.
2. The action is statute barred by virtue of Order 48 Rule 5 of the NICN Rules 2017.
3. The mode of commencing this action is wrong.
4. The 2nd and 3rd Respondents are non-juristic entities.
In his written address in support of the NPO, the learned counsel for the Respondents, Mr. Akinyemi Aremu formulated a sole issue for determination to wit:
“Whether the Respondents/Applicants are entitled to the relief sought.”
In arguing the sole issue, learned counsel for the Respondent/Applicant contended that the court lacks the jurisdiction to entertain this suit. Counsel referred the court to the following established principles:
A court is competent when:
a) It is properly constituted as regards numbers and qualifications of the members and qualifications of the members of the court and no member is disqualified for one reason or the other; and
b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
c) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction.
See Oloruntoba-Oju vs. Abdul Raheem (2009) 13 NWLR Pt. 1157, 83 @ 124 Para E-G; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341.
Counsel submitted that jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision, and that when a court lacks the jurisdiction to entertain an action, such an exercise is one in futility.
On this point, Counsel cited the case of Oloruntoba-Oju vs. Abdul-Raheem (supra) where the Supreme Court held that “Jurisdiction is to a court what a gate or a door is to a house that is why the question of jurisdiction of Court is called a threshold issue as it is at the threshold of the temple of justice. In order to be able to gain access to the temple of justice to ventilate his grievance, a prospective litigant must show that he not only has a genuine, a prospective litigant must show that he not only has a genuine cause but he must also endure that he addresses his complaint to the competent court. Therefore jurisdiction is fundamental and essential to adjudication.”
Also in Elabanjo vs. Dawodu (2006) 15 NWLR Pt 1001, 76 @ 115-116 Para G-B the Supreme Court held that “The issue of Jurisdiction is a threshold issue and a lifeline for continuing any proceedings. Therefore, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceeding is taken. This is because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. Where at any stage, sufficient facts or materials are available to raise the issue of jurisdiction or it has become apparent to any party that it can be canvasses, there is no reason why there should be any delay in raising it.”
It is the submission of Counsel that this action violates the provisions of Section 97 of the Sheriffs and Civil Process Act CAP 56 Laws of the Federal Republic of Nigeria 2004 which regulates the service of originating processes outside a state. It provides that “Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such a state or the capital territory, have endorsed thereon a notice to the following effect (that is to say)-
“This summons (or as the case may be) is to be served out of the ………….state (or as the case may be) ………….and in the state (or as the case may be).
It was the submission of the Respondent/Applicant counsel that the Originating Process in this case was filed and issued at the National Industrial Court, Owerri Imo state while the processes were served on the 1st, 2nd and 3rd Respondents at
Nigeria Social Insurance Trust Fund, No 302 Port Harcourt/Aba Expressway, Port Harcourt, Rivers State.
Counsel argued that the above address is the address on the Originating process showing clearly that the Respondents reside outside Imo State where the Originating process was issued. However, there was no endorsement on the originating process as prescribed by the Act. It is therefore clear that the extant provision of the Sherriff and Civil Process Act has been breached, the breach of which is not without legal consequences. According to counsel, the mandatory effect of the breach is that it renders such originating processes incompetent, thereby robbing the court of the Jurisdiction to adjudicate over such. Counsel referred to the case of Owners of the MV “Arabella” vs. N.A.I.C (2008) 11 NWLR Pt. 1097, 182 @ 207 para B-H to emphasize the mandatory nature of Section 97 of the Sherriff and Civil Process Act and the applicability of its provisions. Counsel urged the court to strike out the originating process for being incompetent.
Counsel has also contended quite emphatically, that this action is statute barred and that the mode of commencing the action is wrong. Citing the provisions of Order 48(3) of the Rules of this court, Counsel submitted that an application for an order of mandamus is an action for Judicial Review. The principal relief prays for an order of Mandamus; hence, it ought to have been brought in accordance with the provisions of Order 48 Rule 5 which provides that “An Application for Judicial review shall be brought within three (3) months of the occurrence of the subject of the application and no leave of court shall be required for that purpose.”
As regards when the cause of action arose in this case, it is Counsel’s submission that recourse should be had to paragraphs 6-17 of the Affidavit in support of the motion as well as the Exhibits attached. The summary of the case is that a demand had been made for the payment of some money since 2004. Paragraph 17 of the affidavit shows conclusively than the last interaction the Applicant had with the Respondents was in December 2015.
Counsel referred to the case of Rinco Const. Co. vs. Veepee Ind. Ltd (2005) 9 NWLR (Pt. 929) 85 @ 95, paras G-H among other judicial authorities where the term “cause of action” has been defined as the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or 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 Plaintiff his cause of complaint; and the consequent damage.”
A cause of action is the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy sought. Counsel argued that the gravamen of the complaint of the Applicant is that respondents have some money belonging to her which they refused to pay despite demands for same. Learned counsel to the Respondent/Applicant submitted that the Claimant’s cause of action crystallized and came into existence on the date the demand was made and not attended to. Counsel informed the court that as at that date, all factors necessary to enforce the perceived contract came into existence. See Egbe vs. Adefarasin (1987) 1 NWLR Pt. 47, 1 @ 21 Para C-D.
According to Counsel, limitation is an issue of jurisdiction and should be determined once raised. Counsel reiterated the decisions in Oloruntoba-Oju vs. Abdul-Raheem (supra) and in Elabanjo vs. Dawodu (2006) 15 NWLR Pt 1001, 76 @ 115-116 Para G-B where the Supreme Court held that the Issue of Jurisdiction is a threshold issue and a lifeline for continuing any proceedings.
It was the contention of counsel that the legal right to enforce any perceived breach of a right in the Applicant has been taken away by the provision of Order 48 Rule 5 of the Rules of this court. Having demonstrated to the court that the action is stature barred, the proper order to make is to dismiss the case as the right to enforce the cause of action has been extinguished. See Egbe vs. Adefarasin (Supra), Elabanjo vs. Dawodu (supra), Ajuta II vs. Ngene (2002) 1 NWLR Pt. 748, 278. Counsel urged the court to dismiss the action as being statute barred.
On the point that the 2nd and the 3rd Respondent are non-juristic persons, the respondent/Applicant counsel submitted that it is trite law that only natural persons, that is to say human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law court. In other words, no action can be filed by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly or by common law either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. The general rule is that the plaintiff and the defendant should be juristic persons or natural persons existing or living at the time the action is instituted. Counsel placed reliance on the case of Administrators/Executors of the Estate of General Sani Abacha (Deceased) vs. Samuel David Eke-Spiff & Ors ( 2009) 7 NWLR (Pt. 1139) 97 @137 Para E.
According to counsel, the Managing Director, Nigerian Social Insurance Trust Fund and Rivers State Manager, Nigeria Social Insurance Trust Fund sued as the 2nd and 3rd Respondents respectively are not natural persons, neither are they statutory bodies. Counsel cited the case of P.G.S.S. Ikachi vs. Igbudu (2005) 12 NWLR (Pt. 940) 543 @ 566, Para D-H, and submitted that the 2nd and 3rd Respondents are not legal personalities which cannot sue or be sued. He therefore urged the Court to declare the action incompetent and strike out same.
Lastly, Counsel argued vehemently that the reliefs sought are vague, nebulous and cannot be granted by the court. According to counsel, the relief sought is unclear and the Court cannot grant any vague or nebulous relief. He urged the court to dismiss same.
In opposing the Preliminary Objection of the Respondents, the Applicant’s counsel filed a reply on points of law on the 11th day of May 2017. Learned Counsel raised the same lone issue for determination as raised by the Respondent in their Preliminary Objection
In arguing the sole issue, the Applicant’s counsel argued that the preliminary
objection lacks merit and should be dismissed in its entirety.
On the issue that the matter be dismissed because the service address is in another state than where the matter was instituted per the provision of Section 97 of the Sheriffs and Civil Process Act, counsel submitted that the argument of the Respondent on the issue of jurisdiction is misconceived. Counsel contended that the National Industrial Court is the creation of the constitution of the Federal Republic of Nigeria 1999 as amended (CRFN 1999) See Section 254 A. According to counsel, the jurisdiction of the NICN covers the entire country and is not restricted to any state. The purpose of Section 97 of the Sheriff Act, is to guide the services of process from one state to another, and this cannot be imputed to the National Industrial Court, whose jurisdiction is cut across the entire Federation of Nigeria. Counsel relied on Section 21 (1) of the National Industrial Court Act which provides that the court shall have and exercise jurisdiction throughout the Federation. Counsel argued that the jurisdiction of the NICN is National, and the creation of Divisions is not to wreck injustice, but to better the course of justice.
Counsel submitted further that the National Industrial Court does not have a court present or sitting in Rivers State or Bayelsa State, and that the nearest state to Rivers State where the cause of action emanated from is Imo State. Consequently, nearness to court is a constitutional provision, which cannot be waived at all by parties. Also, counsel added that Section 97 of the Sheriffs and Civil Process Act, talks about writs of summons and that what they had was a motion on notice filed on the 9th February 2017.
Counsel relied on the case of Action Congress vs. Independent National Electoral Commission (2007) 12 NWLR (Pt. 1048) Pg. 220 at 318 and Okotie Eboh vs. Manager (2004) 18 NWLR (Pt. 903) Pg. 242 at 186-187 by and submitted that where the ordinary, plain meaning of words used in a status are very clear and unambiguous, effect must be given to those words, without resorting to an intrinsic or external aid.
In response to the Respondent claims that the action is statute barred by virtue of Order 48 Rules 5 of the National Industrial Court Rules 2017, the Applicant’s counsel argued that the rules of court are being misconceived by the Respondents. Counsel argued that the cause of action is still continuing and that the benefits have not been paid to the Applicant. Counsel submitted that assuming without conceding that they were to consider when the cause of action arose, it was when the Applicant's husband was invited to come and collect his benefits. There is no denial of the fact that the Respondents are still with the money, hence the cause of action still continues. Counsel relied on the position of the law in CBN vs. Amao (2010) VOL 5-7 (Pt. 111) MJSC and submitted that in so far the Respondent has not paid the Applicant’s husband, the cause of action is still continuing.
Further, counsel made reference to Order 5 of the Rules of this court and urged the court to depart from the stringent application of the rules of court in the interest of justice. Counsel in urging the court submitted that the Applicant is a widow of more than seventy years whose husband died while pursuing his benefits. Counsel also submitted that the matter was done pro bono on these grounds and urged the court to dismiss this application on the issue of non-compliance.
On the issue of the 2nd and 3rd Respondents being non-juristic entities, counsel submitted that the issue of non-juristic person does not apply in an application for judicial review. The black’s law dictionary 14th Edition defines mandamus as order issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly. Any government officer can be sued, in this case the 2nd and 3rd Respondent, to compel them to perform any function.
It was the submission of counsel for the Applicant that Order 48 Rule 10 empowers the court to make the order against any officer or Authority or public servant or any other person al law who can sue or be sued. Counsel submitted that the Applicant has sued those officers who can be sued, within the meaning of the rules of the court, and that from Exhibit C, the 3rd Respondent has been the
one writing for the Applicant to come and collect his benefit. Counsel submitted that they are hereby estopped from denying the existence of this fact. Counsel further posited that the 2nd Respondent is the Chief Executive Officer of the 1st Respondent hence it is wrong to postulate that they are not juristic persons. Also counsel submitted that there are occupants to this position at Port Harcourt hence, the orders when granted will not be vague. On this strength, counsel urged the court to discountenance and dismiss the application of the Respondent.
On the 1st day of June 2017, the Respondents filed a Reply on Points of Law in further support of their Notice of Preliminary Objection and in answer to the Applicant’s Reply of 11/5/2017 filed in opposition to the PO. Counsel for the Respondents merely reiterated and re-emphasized the earlier arguments made in support of the PO, and urged the court to dismiss the action.
The 4th ground of the Respondents’ Notice of Preliminary Objection is that the 2nd and 3rd Respondents are not juristic persons and are therefore not competent parties to this suit. It is necessary that the issue whether the Respondents in this suit have the competence to be sued be determined first. It is only when there are Respondents in the suit that the suit can go on. Therefore, other issues of proper service, mode of commencement of the action and expiration of the cause of action can be considered only if there is or there are Respondents in the matter.
The Respondents in this action, in the order they were sued, are the Nigerian Social Insurance Trust Fund, the Managing Director, Nigerian Social Insurance Trust Fund and Rivers State Manager, Nigeria Social Insurance Trust Fund. The Respondents counsel submitted that the 2nd and 3rd Respondents are neither natural nor statutory bodies. They can therefore not sue or be sued. In response, the Applicant’s counsel submitted that the issue of legal personality does not apply in applications for judicial review. According to counsel, in an application for order of mandamus, any government officer or office or authority can be sued whether or not it has legal personality. Counsel placed reliance on Order 48 Rule 10 of the rules of this court. The Applicant’s counsel appears to concede that the Respondents are not legal persons. Counsel did not make any argument to the effect that the 2nd and 3rd Respondents have juristic personality. He only submitted, relying on Order 48 Rule 10, that the Respondents can be sued in proceedings for Order of Mandamus.
Let me remind the learned counsel for the Applicant that an application for Order of Mandamus, commenced by an originating motion, is a suit on its own. It is the law that only natural or juristic persons can sue or be sued in all actions before the court, no matter the procedure by which it is commenced. Order 48 Rule 10 of the rules of this court referred to by the counsel to the applicant does not support counsel’s contention. The rule specifically provides that the power of this court to make an order of mandamus shall be exercised notwithstanding that the order is made against any officer or authority including a minister, commissioner, public servant or agent of the Government or any other person at law who can sue or be sued. When interpreted correctly, the provision is to the effect that those against whom proceedings for order of mandamus can be brought must be persons who can sue or be sued. They may be officers, authorities, minister, commissioner, public servant, agent of the government or any other person but they must have the capacity to sue or be sued. In my view, the Respondents in proceedings for order of mandamus brought under Order 48 Rule 3 of the rules of this court can only be those with juristic personality or who can sue or be sued.
It is trite that a party who commences an action in court or who is sued to court must be a person known to law. Generally, the law recognizes two categories of persons who can sue and be sued in the court. They are natural persons or artificial persons or institutions having juristic personality. The name of a party who is sued must be the real name by which he is known in the case of a natural person and its corporate name in the case of a non-natural juristic person. See ZAIN NIG. LTD vs. ILORIN (2013) All FWLR (Pt. 681) 1518 at 1550; N.F.C.A. vs. LALOKO (2003) FWLR (Pt. 144) 482 at 495-496; GENEVA vs. AFRIBANK NIG. PLC (2013) All FWLR (Pt. 702) 1652 at 1678; ABUBAKAR vs. YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136. Therefore, an action cannot be maintained against a defendant who is not a legal person
The 2nd and 3rd Respondents in this action are titles. They are not natural persons. To find out if they are juristic persons, I will have recourse to the Nigerian Social Insurance Trust Fund Act 2004 to see if these Respondents are conferred with capacity to sue or be sued. I have gone through the provisions of the Act but I cannot find any provision where the 2nd or 3rd Respondents were established or created. Section 7 of the Act merely provided for the appointment of a person as the Managing Director who shall be the Chief Executive of the Board of the NSITF. The office of Managing Director is an appointment and not an office that has capacity to sue and be sued. For the 3rd Respondent, it is not covered or mentioned anywhere in the Act. It is obvious that the 2nd and 3rd Respondents do not have juristic personality. They do not have the capacity to sue or be sued.
The 1st Respondent is the Nigerian Social Insurance Trust Fund. Section 1 of the Act provides:
There is hereby established a fund to be known as the Nigeria Social Insurance Trust Fund (in this Act referred to as "the Fund") into which shall be paid all contributions and other monies as may be required to be paid or contributed under this Act and which Fund shall be operated and managed as provided in this Act.
Then Section 2 of the Act provides:
(1) There is hereby established for the management of the Fund, a body to be known as the Nigerian Social Insurance Trust Fund Management Board (in this Act referred to as "the Board") which shall, subject to this Act have general control of the Fund and investments of sums forming part of the Fund.
(2) The Board shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
The 1st Respondent is established in Section 1 of the Act but it is not given the capacity to sue or be sued. By its creation, the 1st Respondent is only a fund where trust contributions under the Act are paid. But Section 2 established the Management Board of the Fund which is given the capacity to sue or be sued. The body which ought to be sued in respect of the complaint of the applicant in this suit is the Management Board and not the Fund itself. It is the Management Board who has the capacity to sue and be sued and not the Fund. It presupposes that the 1st Respondent is not a competent party to this suit as well.
In the result, all the Respondents are not competent parties. They cannot be made Respondents in this action. The 1st, 2nd and 3rd Respondents are hereby struck out. Since there is no competent Respondent to the motion, this court cannot proceed any further in the matter. The suit is hereby struck out. This is without prejudice to the rights of the Applicant. No order as to cost.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe