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Representation: C. C. Nwaodu for the Claimant Chief H. M. Duruoha, with him, Amarachi C. Ogazi (Miss), for the Defendants/Applicants RULING This ruling is premised on a Motion on notice dated and filed on the 14th day of October 2015 and brought pursuant to Section 24(1) of the National Industrial Court Act 2006, Order 11(1) of the National Industrial Court Rules 2007 and the inherent jurisdiction of the court, wherein the Defendant sought the following Orders of Court: 1. Setting aside the service of the processes of this suit on Defendant on the ground that the processes in this action were not served in accordance with the law. 2. Striking out this suit on the grounds that the Writ of Summons and other documents filed by Claimant are incompetent, having not been sealed as provided for by law. Or, in the alternative, 3. Transferring this suit to the Lagos division of the Court on the grounds that: a. The cause of action in this suit arose at Lagos of Lagos State, outside Imo State. b. The parties all reside at Lagos of Lagos State, outside Imo State. c. It is not convenient for the Defendant to have the case heard at Owerri. d. The claim on staff mortgage relates to land situate at Lagos of Lagos State, outside Imo State. The application is supported by a fifteen-paragraph affidavit deposed to by one Eugene Ejiofor, a Customer Service Manager of the Defendant’s MCC Road, Owerri branch. In the accompanying address, Counsel proposed three issues to be determined as follows: 1. Whether the mode of service of the Writ of Summons and other processes in this action on the applicant is permissible in law. 2. Whether the Writ of Summons and other processes filed by respondent in this action are competent without seals? 3. Whether it will serve the ends of justice for this suit to be heard at Owerri instead of Lagos? On the first issue, counsel argued that a faulty service of a process goes to the roots of the case, and it affects the jurisdiction of the Court. Such issue can be raised at any time and it can never be alien to the proceedings. See N. V. B. vs. Samba Pet Co. (2006) 13 NWLR (Pt. 993) 98. He argued further that Service of a process on a bank should be at its headquarters or on any of its principal officers who all reside at Lagos. See paragraph 6 of the affidavit in support of the Motion and Order 7(6) of the Rules of this Court. Counsel referred to PHCN vs. Ogunsuyi (2013) LPELR-19838 (CA) 26, where the Court of Appeal held that: “A principal officer of a company has been interpreted to mean and include one who can pass as the alter ego of such a company . . . It is not the respondent's case that service was effected under the first method, because David Agwu the Senior Clerical Officer cum Time Keeper of the appellant who was served with the writ of summons at Obudu can hardly qualify as Director, secretary or other principal officer of the appellant.” Thus, service of the originating processes in this suit on the branch secretary of a bank is invalid service, see the cases of Integrated Builders vs. Domzaq (Nig) Ltd (1994) 2 NWLR (Pt. 327) 420 and Kraus Thomson Organization vs. University of Calabar (2004) 9 NWLR (Pt. 879) 631. Counsel also referred the Court to Section 77 of the Companies and Allied Matter Act Cap C20 LFN 2004 CAMAand argued that no principal officer of the defendant authenticated the bailiff’s purported service on the 1st applicant. For this reason, counsel urged the Court to strike out all the affidavits of service filed in this suit in respect of 1st applicant, resolve this issue in the negative and set aside the service of the Writ on the applicant's branch secretary. Counsel sought for cost of Nl00,000.00. Regarding issue two, counsel submitted that by the provision of the law, any document or process signed by a legal practitioner must have the seal approved by the Nigerian Bar Association. He referred to Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, which provides as follows: (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. (2) For the purpose of this rule, "legal documents" shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents. (3) If, without complying with the requirements of this rule, a lawyer sings or files any legal documents as defined in sub- rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed. He argued that the respondent filed this suit on 7/5/15 which period falls within the time approved for the use of the seal to be effective. He did not append his seal to the Writ of Summons, Statement of Claim and deposition thereof. Essentially, the Writ of Summons, Statement of Claim and deposition filed in this suit are incompetent and ought to be discountenanced. Consequently, counsel urged the Court to resolve this issue in the negative and set aside the claims of the respondent and allow the applicant to prove its Counter-Claim. It is the submission of counsel that his third issue is an alternative prayer in the event that the Court overrules the first two prayers. Counsel submitted further that the main determinant of a place of trial is the defendant's place of residence. See Order 2(1) of the National Industrial Court Rules, 2007. He submitted further that Nigeria is a common law country and the Court is bound by certain common law principles of convenience in choosing a venue for trial. Thus, it is not convenient for this case to be tried at Owerri, hence the request for the court to exercise its power under Order 2(3) and transfer same to Lagos for hearing and determination. This is owing to the fact that lack of convenience may impair the defendant's ability to defend this suit. By extension, its right to fair hearing is being impeded. It is the contention of Counsel that this case ought to be heard in the Lagos division of the Court because of the following reasons: 1. The cause of action in this suit arose at Lagos of Lagos State, outside Imo State. 2. The parties all reside at Lagos of Lagos State, outside Imo State. 3. It is not convenient for the defendant to have the case heard at Owerri. 4. The claim on staff mortgage relates to land situate at Lagos of Lagos State, outside Imo State. Thus, there is no valid reason to justify this case being filed at Owerri. Also, respondent makes a claim relating to a legal mortgage and a property at Plot 1A Block 16, Crown Estate, Sangotedo, Lagos of Lagos State. Counsel urged the court to resolve this issue in the negative and order that the suit be transferred to Lagos. In opposing the application, the claimant on 21/10/2015 filed a 12 - paragraph counter affidavit. In the written address filed alongside, Counsel raised two issues for determination as follows: A. Whether in the light of the extant statutes and Rules of this honourable court governing the commencement of legal actions, the defendant's application seeking to strike out this suit on the disclosed grounds is not a mere academic exercise and tantamount to a gross abuse of the judicial process. B. Whether the request for the transfer of this suit to Lagos is supported by any iota of law. Counsel argued both issues together and submitted that this suit was properly instituted by the claimant in this court through her counsel, C.C. Nwaodu, Esq. He argued that all that is required for the action to be competent is that counsel is a legal practitioner within the meaning of Section 46 of the National Industrial Court Act, 2006. Counsel referred to the case of Federal Republic of Nigeria vs. Osahon (2006) All FWLR (Pt. 312) 1975 where it was held that once a person is admitted as a legal practitioner, he savours the right to practice in the court. He argued further that Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 is not an Act of the National Assembly neither is it a subsidiary legislation to the Legal Practitioners Act. Therefore, to the extent that it is inconsistent with the substantive statute, counsel urged the court to hold that to such extent Rule 10 is void. He submitted that Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 will be narrowly interpreted against the NBA and sympathetically in favour of the Claimant’s counsel. Counsel relied on the Supreme Court case of A-G Bendel State vs. Aideyan (2003) FWLR (Pt. 187) 886 at 924, A – C. It is the further submission of Counsel that the defendant’s argument that the Writ is incompetent is a mere academic exercise which approximates to a gross abuse of the judicial process. Besides, the enforcement of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 has been recently dealt with by the Supreme Court and overruled out of hand. Again, counsel is of the view that the request for transfer is without the warrant of the law at all and is deeply misconceived. See Order 2 Rule 1 of the National industrial Court Rules, 2007. Counsel submitted further that by the alternative prayer for the transfer of this action to Lagos where the defendant alleges that it would be more convenient for it to defend same, it has waived the complaint of irregularity in the institution of this action. This is arising from the fact that the defendant has taken fresh steps after becoming aware of the alleged irregularity. See A - G, Bendel State vs. A - G- Federation (2001) FWLR (Pt. 65) 448 and Anyanwoko vs. Okoye (2010) All FWLR (Pt. 515) 214 at 229, E – F. Counsel urged the Court to discountenance the alternative application for transfer and assume full jurisdiction in this suit. Counsel also filed a 9- paragraph further counter-affidavit 20/1/2016 wherein counsel deposed to further facts in opposition to the application, particularly as it relates to the issue of affixing the stamp to court processes. The Applicant filed a reply on points of law on the 1st day of February 2016 wherein he raised three issues for determination to wit: 1. Are the counter-affidavit and further counter-affidavit dated and filed 21/10/2015 and 20/1/2016, respectively competent in law? 2. Has claimant/respondent succeeded in challenging defendant/applicant's affidavit in support of the Motion? 3. Is the Court bound to follow the decision of the Supreme Court? On the first issue, counsel contended that the failure of the respondent to depose to both affidavits; though she was present at her solicitor's office on 19/10/15 at about 2pm, and without the deponent giving valid reason for her not signing them, has rendered the affidavits hearsay evidence. Secondly, Section 115 of the Evidence Act specifies that an affidavit shall not contain extraneous matters by way of objection, prayer or legal argument or conclusion. See Okponipere vs. The State (2013) 220 LRCN (Pt 2) 143 @ 159. He contended further that Paragraphs 2 and 3 - 10 of the counter affidavit of 21/10/15 are just legal arguments and conclusions. In the light of the foregoing, counsel urged the court to expunge these paragraphs. Thus, there would be nothing left to contradict the affidavit in support of the Motion. In such a situation, the Court is enjoined to grant the application as unchallenged. With respect to issue two, counsel submitted that the two counter affidavits did not challenge paragraphs 3, 4, 5, 6, 7, 11, 12, 13 and 14 of the affidavit in support of the Motion. The law is trite that where an affidavit is unchallenged, the facts deposed should be deemed as true. See Nwosu vs. Imo State Environmental Agency (1990) 4 SCNJ 97. Counsel relied on the case of General Bello SarkinYaki vs. Senator Abubakar Atiku Bagudu (Unreported) Appeal No. SC/722/15, where the Supreme Court of Nigeria held that a process filed without the Bar seal is incompetent. Thus, by reason of the doctrine of stare decisis the Court is bound to hold that the Writ, Statement of Claim, counter affidavit and further affidavit in the present case are all incompetent. Particularly, as at the time the processes were filed, counsel was not even verified yet and he had not even applied for the seal. Counsel urged the Court to resolve the first two issues in the negative and the third in the affirmative and grant the prayers of this application. Court’s Decision The facts relied on by the Defendant in this application are contained in the affidavit of one Eugene Ejiofor who said he is the Secretary of Defendant's branch at 4 MCC Road, Owerri. He averred that the headquarters, registered, principal and advertised office of the defendant is at Lagos and all the principal officers of the defendant ordinarily stay at the said head office of the defendant at Lagos but the processes in this suit was served on him at the Defendant’s No. 4 MCC Road, Owerri branch. The deponent stated further that the cause of action in this suit arose in Lagos, all principal officers of the Defendant are resident in Lagos, the Defendant’s witnesses are all resident at Lagos and the land, subject of the mortgage between parties, is situate at Lagos. It was averred further that the Claimant too resides in Lagos. The deponent also stated that the Writ of Summons and the accompanying processes were not sealed by Chigozirim C. Nwaodu, Esq, who signed the processes, contrary to the provisions of the law. The deponent concluded that filing this suit at Owerri will restrict the Defendant’s ability to defend the suit. The Claimant’s counter affidavit to the motion was deposed to by Emeka E. Chime, Esq., a legal practitioner in the law firm representing the Claimant in this proceeding. Paragraphs 6, 7, 8, 9, 10 and 11 of the counter affidavit are patently flawed. The averments in these paragraphs are nothing more than legal arguments, conclusions and opinion of the deponent. The paragraphs are clearly in violation of Section 115 (2) of the Evidence Act 2011 (as amended). The offending paragraphs are hereby struck out. What is left in the counter affidavit are the deponent’s averments that the defendant’s branch at No. 4, MCC Road, Owerri is a major branch of the defendant as it is headed by a full Manager and upon the filing of this suit, the deponent said he instructed the bailiff of this court to effect service on the Manager of the defendant’s branch at No. 4 MCC Road, Owerri. After her dismissal, the claimant relocated to her home town in Uratta, Owerri and did notify the Defendant of this fact. It was also stated that C. C. Nwaodu, Esq., who signed the writ of summons, is a Barrister & Solicitor of the Supreme Court of Nigeria with enrolment number SCN/20178 having been called to the Nigerian Bar in December, 1991. The Claimant, in addition, filed a process dubbed “further counter affidavit” and it was deposed to by CHIGOZIRIM C. NWAODU, ESQ., a legal practitioner who described himself as the Principal Solicitor & Head of the law firm representing the claimant in this suit. I shall strike out the so called further counter affidavit. After having filed a counter affidavit, it is the defendant/applicant who has the opportunity to file a further affidavit in response to new facts arising from the counter affidavit. Even then, no further affidavit was filed by the defendant. Beside the fact that the claimant does not have the right to any such process called “further counter affidavit”, since no further affidavit was filed by the defendant, there are no new facts to which the said further counter affidavit is necessary. The further counter affidavit is accordingly struck out. From the prayers sought by the defendant in this application and the submissions of its counsel in the written address, the Defendant’s complaint against this suit is on 3 grounds. The grounds are- 1. The processes in this suit were not served on the defendant at its head office nor on any of its principal officers. 2. The Writ of Summons and other processes were not affixed with the NBA stamp of the counsel who signed the processes. 3. Lagos Division of this court is the appropriate forum for this suit to be heard. I shall consider each of these identified grounds or prayers in the defendant’s application. The processes in this suit were served at the Defendant’s No. 4 MCC Road, Owerri branch and it was received by the branch secretary. Let me mention that the Defendant has entered appearance in this suit, even though conditionally. It has also 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 at the Defendant’s head office at Lagos or on any of its principal officers who all reside at Lagos. The Defendant’s counsel cited section 78 of the Companies and Allied Matters Act and Order 7, Rule 6 of the Rules of this Court 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 in 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. Order 7, Rule 6 provide 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 by leaving the processes at the place of business of the company within jurisdiction of the court. Facts deposed by both parties in their affidavit show that the Defendant has a branch office at No. 4 MCC Road, Owerri where it does business. The branch is within the jurisdiction of this court and the Defendant was served in that place of business of the Defendant. By effect of the above provision of the rules of this court, the Defendant can be served at its said branch being its place of business within the jurisdiction of this court. What is more, the Defendant has become aware of this suit through the service on its branch office 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. Consequently, the 1st order sought by the Defendant in this application is refused. In a similar note, the Defendant sought in the 3rd prayer an order for the transfer of this suit to the Lagos Division of this court. The particulars attached to this prayer are that: i. The cause of action in this suit arose at Lagos; ii. All the parties reside at Lagos iii. The claim on staff mortgage relates to land situate at Lagos; and that iv. Hearing the case at Owerri will not be convenient for Defendant. In the affidavit in support of the motion, it is deposed on behalf of the Defendant that the cause of action in this suit arose in Lagos; all principal officers of the Defendant are resident in Lagos; the Defendant’s witnesses are all resident at Lagos; the land, subject of the mortgage between the parties, is situate in Lagos; and that the Claimant too resides in Lagos. In the Claimant’s counter affidavit, the only fact averred therein contrary to what was deposed in this regard by the Defendant is the fact that the Claimant has since relocated from Lagos into Owerri. From the facts by the Defendant, it appears this suit ordinarily ought to be filed in the Lagos Division of the NIC because the Defendant’s head office or principal place of business is in Lagos and the cause of action happened in Lagos. I must say however that the rules of this court have taken care of his type of situation. Order 2 Rule 1 provides that in the matters on which this court has jurisdiction, originating processes thereto may be filed in the registry of the court nearest to where the Defendant resides or has presence or carries on business. The rules went further in Rule 3 of Order 2 that suits filed in the wrong division of this court may be tried in that division unless directed otherwise by the President of this court. By the combined effect of these provisions, the fact that the Defendant has presence and carries on business within the jurisdiction of Owerri Division, permits this suit to be filed in this division. If at all the Defendant’s reasons for seeking transfer of the suit is to be given any consideration, the effect will only be to view this suit as having been filed in a wrong division. Order 2 Rule 3 says the suit can nonetheless be heard in this division. The only authority to move or transfer suit filed in wrong judicial divisions is the president of this court. That is to say I am not the competent authority to order transfer this suit even if the Defendant’s prayer is to be given any merit. It is the president of the court. But this application is made to me and not the President. In my view, Order 2 Rules 1 and 3 has permitted the trial of this suit in this division. Accordingly, the Defendant’s prayer 3 is also refused. I have examined the processes filed by the Claimant in this suit and I find that the NBA stamp of the counsel who signed the process was not affixed to any of the processes. It was on this ground the Defendant has urged this court to strike out the suit for being incompetent. The argument of the Claimant’s counsel on this point, though brilliant, is of no moment in this instance. The requirement for sealing of court processes has not taken away counsel’s right to practice as a Barrister and Solicitor of the Supreme Court of Nigeria. While the right to practice is sacrosanct, there are laws or regulations regulating that right. These include the Legal Practitioners Act and the Rules of Professional Conduct for Legal Practitioners, 2007. The RPC is made pursuant to the Legal Practitioners Act 2004. It makes the RPC a subsidiary legislation and imbues it with a force of law. Rule 10 of the RPC provides as follows: (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. (2) For the purpose of this rule, "legal documents" shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents. (3) If, without complying with the requirements of this rule, a lawyer sings or files any legal documents as defined in sub- rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed. This rule requires that every process filed by counsel in court must be sealed with the NBA Stamp. The effect of failure to affix the stamp is that the process will be deemed improperly signed or filed. The Supreme Court has given judicial thrust to the provision of Rules 10 of RPC in a decision delivered on 27th October 2015 in Appeal No: SC/722/15 between ALL PROGRESSIVES CONGRESS V. GENERAL BELLO SARKIN YAKI. The Supreme Court stated in that case that such a document filed without the seal, even though signed and filed is not proper in law for the reason that the condition precedent for its proper signing and filing has not been met. The RPC was made in February 2007 but, as submitted by the Defendant’s counsel, the Nigerian Bar Association made the use of the seal/stamp compulsory as from 1st April 2015. The Claimant filed this suit on 7th May 2015. I recall however the directive of the Chief Justice of Nigeria to all the Heads of Court, contained in his Lordship’s letter dated 12th May 2015, to enforce and implement the NBA stamp policy starting from 1st June 2015. This suit was filed before the directive was handed down. Therefore, the Claimant’s originating processes may be excused on that premise but that does not mean that it is excused from total non-compliance with the stamp and seal policy/rule. Before I conclude, let me comment on the argument of the Defendant’s counsel that non sealing or stamping of the processes render them incompetent and the suit liable to be struck out. The Supreme Court, in the ALL PROGRESSIVES CONGRESS V. GENERAL BELLO SARKIN YAKI case has explained the effect of not affixing the NBA stamp to a court process. The unanimous view of their Lordships in the Supreme Court is that failure to affix a stamp to court process in contravention of Rule 10 RPC 2007 only renders the process irregular or voidable. It was also held that the irregularity can be cured by simply affixing the stamp. Nwali Ngwuta JSC, who read the lead judgment, expressed the view that such a process even though signed and filed is not null and void or incompetent. He further said: “In such a case, the filing of the process can be regularized by extension of time and deeming order. In the case at hand, the process filed in breach of Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the affixing of the stamp and seal would make the filing proper in law.” Therefore, in my view, the Claimant’s processes are not incompetent as argued by the Defendant’s counsel. The processes are only irregular or voidable. They can be validated or regularized by affixing the stamp. Because the suit was filed before the CJN’s directive to this court, I shall allow the Claimant the opportunity to validate the processes in the interest of justice. Accordingly, the Claimant’s counsel is given on or before the return date of this matter to affix to the processes, that is the copies of this court and that of the Defendant, the NBA stamp or seal of the counsel. Failure to comply will make this court to revisit the issue on the return date. In the meantime, the Defendant’s motion ought to be dismissed for lacking in merit. It is accordingly dismissed. This suit will continue in this court subject to the fulfillment of the condition given to the Claimant to validate the processes. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge