RULING. 1. This is a motion on notice dated 12/3/2019 and filed on the same day. It was brought pursuant to Section 9 (1) of the Official secret Act, section 190(1) of the Evidence Act 2011, Order 18 rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. 2. In the motion paper the defendants/applicants are praying for:- 1. An order setting aside subpoena ad duestecum issued by this Honourable court against the 1st and 2nd defendants in this matter dated 19/2/2018. 2. An order of this Honourable Court setting aside subpoena ad ducestecum issued by this Honourable Court against the 1st and 2nd defendants in this matter dated 15th January 2019. 3. And for such order or other orders as this Honourable Court may be deemed to make in the circumstances of this matter. 3. The application is supported by a 12 paragraphs affidavit, sworn to by Jamilu Hamisu, an employee of the 2nd defendant. 4. The salient averments in the affidavit are to the effect that the documents which are to be produced are security classified document and they have not been declassified by appropriate authority. An unauthorized disclosure of such classified document to members of the public who do not have the need to know will be prejudicial to the Nigeria’s National Security. 5. The defendants/applicants also filed a written address along with the application. U. Batife, Esq; counsel for the defendants in oral adumbration relied on the depositions contained in the affidavit in support. Counsel also adopted the written address as his argument. In the written address the issues formulated for determination, are as stated below:- a. Whether the documents sought to be produced are relevant to the facts of the claimant’s case; b. Being the documents sought to be produced are security classified documents which have not been de-classified by the appropriate authority, whether such classified documents can be produced before this Honourable and be accessible to members of the public who do not have the need to see the documents. 6. In arguing issue 1, counsel contended that the answer is in the negative. The reason being that the documents sought to be produced are in no way relevant to the case of the claimant. The claimant's case is that of alleged wrongful dismissal from the Service of the 2nd Defendant. He claimed that the disciplinary procedure followed by the Defendants in dismissing him was faulty as he was not given adequate fair hearing to defend himself. 7. It is submitted that the disciplinary procedures for senior civil servants as in the case of the claimant are contained in the Public Service Rules of 2009. It is our submission therefore that the Nigeria Security Organization (NSO) Regulations 1981 sought to be produced in this matter is not in any way relevant to this matter. It's production will only waste the precious time and resources of this Honourable Court. 8. It is also submitted that the suspect movement book and station diary of Oyo Command, all, of March 2015 together with the investigation Report of the escape of high profile suspects from Oyo State Command of the 2nd Defendant are all documents dealing with an incident of security breach which led to the escape of suspect from custody. The documents do not have any connection with the disciplinary procedure that led to the dismissal of the claimant by the 2nd Defendant. 9. In conclusion, counsel contended that, the documents sought to be produced are not relevant to this case. Counsel urged the court to so hold and to set aside the subpoenas issued against the 1st and 2nd Defendants. 10. In arguing issue two, counsel contended that, assuming without conceding that the documents sought to be produced are relevant in this matter, being documents that are classified within the meaning of Section 9(i} of the Official Secret Act of 1962 Cap. 0.3 LFN 2010, disclosure of these documents would be prejudicial to the security of Nigeria. These documents contain details and records of sensitive operations executed by the 2nd Defendant; it contains records and identities of the operatives working under the 2nd Defendant. The documents contain the modus operandi of the 2nd Defendant which for security reasons should be not be disclosed to the public who do not have the need to know. Disclosing the information contained in such documents may put the lives of the operatives that participate in some serious operations in danger. Counsel urged the court to set aside the subpoenas issued in favour of the claimant. 11. Counsel also referred to Section 190(1) of the Evidence Act 2011, which permits the head of a Ministry, Department or an agency of the Federal or State Government to withheld permission to release any unpublished official records relating to affairs of state or give any evidence derived from such record. However, counsel was quick to observe that the proviso to the section mandates the head of Government Ministry or Agency, following an order of Court to produce to the judge the official records in question or, as the case may be, permit evidence derived from it to be given to the judge alone in chambers; and if the judge, after careful consideration shall decide, that the records or the oral evidence as the case may be, should be received as in the proceedings, he shall order this to be done in private as provided in Section 36 (4) of the constitution. 12. In concluding his submission, counsel contended in view of the above provision of secton 190(1) of the Evidence Act, the defendants would as a sign of good faith and with a view not to appear that the defendants are concealing items of evidence favourable to the claimant’s case, are willing and ready to produce the documents for consideration of the court subject to the provisions of Section 190(1) of the Evidence Act 2011. 13. In reaction to the defendants application the claimant on 19/3/2019, deposed to an 18 paragraphs counter affidavit, wherein the salient depositions of the defendants in the affidavit in support were said to be false. It is pertinent to note that the claimant has admitted that the dates for the documents sought to be produced before the court by the subpoena ad decestecum were not correct. A written address was also filed along with the counter affidavit. Abdurrazak Alpha, Esq; counsel for the claimant placed reliance on the deposition contained in the counter affidavit. Counsel also adopted the written address as his argument in the written address twin issues were formulated for determination, they are:- a. Whether the documents which the Defendants were subpoenaed to produce are relevant to the Claimant's case. b. Whether the Defendants' refusal to produce the documents which they are subpoenaed to produce does not amount to violation of the Claimant's right to fair hearing. 14. In arguing issue one; counsel started by admitting that the date of documents stated on the subpoenas dated 19th February, 2018 and 15th January, 2019, were not correctly stated. The correct date or year of the documents is 2016 and not 2015 as stated while the correct date of the Nigerian Security Organization Regulation is 1981 and not 1986 as stated in the subpoena. Counsel apologies to the court for this human error and also appreciates the counsel for the defendants for exposing the error. 15. Counsel continued his submission by contending that the claimant is challenging his purported dismissal from service on the ground that he was not involved in the escape of 7 suspects from the defendants custody, the basis on which the claimant was dismissed from service. To support this argument counsel refers to paragraphs 7, 8, 9, 10 and 11 of the Claimant's Further Amended Statement of Fact filed on 12th March, 2019. The above mentioned paragraphs of the Further Amended Statement of fact, shows clearly that the case of the Claimant is that he was not at work on the day of the incident of the escape of the suspects from the Defendant's custody and that he did not have access with them either on the day of the incident or prior to the day, of the incident. The Claimant states further that a panel was setup by the Defendants to investigate the incident of escape of the suspect and the said panel exonerated him. 16. It is contended that the Claimant is challenging his dismissal on the ground that he was not involved in the incident among other grounds, the reason for which the Defendant dismissed him. It is the submission of counsel that the incident of escape of 7 suspects from the custody of the Defendants and non-involvement of the Claimant in the incident are facts that are very material to the determination of this suit, the proof of which could be established by those documents which the Defendants are subpoenaed to produce. 17. Thus, for all purpose and intent, the documents which the Defendants are subpoenaed to produce are relevant to the case at hand. To support this view reliance was placed on Sections 6 of the Evidence Act, 2011, and the case of OKONJI & ORS V NJOKANMA & ORS (1999) 14 NWLR (P 638) 250 ; (1999) LPELR - 2477 (SC) P. 17 PARAS B - D where it was held thus: "In the law of evidence, the relevance of facts encompasses a wide area; see sections 6, 7, 8, 9, 10, 11, 12, 13, 16, 17 and 18 of the Evidence Act. Generally, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as may be declared under the Evidence Act to be relevant, see section 6 of the Evidence Act. No doubt, it is the surrounding circumstances that will determine the relevancy of a fact." 18. Counsel refers to the Defendants paragraph 3.02 of their written address where it was contended that the relevant document to the Claimant's case is Public Services Rules 2009 and not Nigeria Security Organisation (NSO) Regulations 1981. It was argued by counsel that this submission is erroneous for same does not take into consideration the case of the Claimant as pleaded, the Claimant's case is that Nigeria Security Organization (NSO) Regulation 1981 states out the officers and schedule of duties of officers of the Defendant who are in charge of keeping suspects in the defendants' custody. See paragraph 6 of the Further Amended Statement of Facts and since, it is the Claimant's contention that it is not within his scope of duties to keep the suspects, Nigeria Security Organisation (NSO) Regulation 1981, becomes relevant to the Claimant's case as this document will show the officers in charge of keeping suspects in the defendant's service. The provision of Public Service Rules of 2009 has nothing to do with this case hence same is irrelevant to the Claimant's case as presently constituted. 19. In concluding his submission on this issue, counsel urged the court to hold that the documents which the Defendants are directed to produce are relevant to the Claimant's case. ISSUE TWO; 20. It is the contention of counsel that by Section 36 of 1999 Constitution of Federal Republic of Nigeria, the Claimant's right to fair hearing is well protected, hence disallowing the production of document which the Claimant intends to use for the prosecution of his case, no doubt will violate the Claimant's right to fair hearing. 21. According to counsel, the contention of the Defendants that by the provision of Section 9(1) of the Official Secret Act, the documents sought to be produced by subpoena in this case are classified documents hence they cannot be disclosed. It is further argued that the Defendants did not in anywhere in their affidavit in support of this application shown by any stretch of evidence that that these documents are classified documents and that their production is inimical to the security of the state. Counsel urged the court to discountenance the Defendant's submission as same is not supported by evidence. 22. In the unlikely event that the court disagrees with this submission, the documents sought to be produced in this case are classified documents, I submit that the Defendants are still bound to obey the order of court and produce the documents. See Section 190 (1) of Evidence Act, 2011 which provides thus: 23. "Subject to any direction of the President in any particular case, or of the Governor of a State where the records are in the custody of a State, no one shall be permitted to produce any unpublished official records relating to affairs of state or to give any evidence derived from such record except with the permission of the officer at the head of the Ministry, Department or Agency concerned, who shall give or withhold such permission as he thinks fit. 24. Provided that the head of the Ministry, Department or Agency concerned shall on the order of the court, produce to the judge the official record in question or, as the case may be, permit evidence derived from it to be given to the judge alone in chambers and if the judge after careful consideration shall decide that the record or the oral evidence; as the case may be, should be received as evidence in the proceeding, he shall order this to be done in private as provided in section 36(4) of the Constitution. 25. Counsel contended that it is obvious from the above quoted provision of Evidence Act, that the Defendants are allowed to produce the documents sought herein even if the documents are classified documents. This is allowed to be tendered in evidence in chambers. 26. It is the contention of counsel that the provision of Official Secrets Act (supra) cannot override the constitutional provision of Section 36 of the 1999, Constitution which donates in favour of the Claimant's right to fair hearing. To support this contention, reliance was placed NWAIGWE & ORS V OKERE & ANOR (2008) LPELR - 2095 (SC) P 21 PARAS F - G where it was held thus: " ... the constitution is the supreme law of the land and it is settled law that any law or Act or section thereof that is inconsistent with any provision of the constitution is null and void to the extent of the inconsistency." See also the cases of OYEMA & ORS V OPUTA & ORS (1987) LPELR - 2736 (SC) PP 28 - 29 PARAS F - A, OBAYUWANA V GOV. OF BENUE STATE & ANOR ,(1982) LPELR- 2160 (SC) P 46 PARAS D - E, (1982) 12 SCP 147. 27. In view of the above, it is submitted by counsel that the documents sought to be produced by subpoenaed issued by this Honourable Court are allowed to be produced and tendered in evidence, if not in open court, but definitely in chambers as this will take the production and tendering of the documents away from public glare in open court. 28. In concluding his submission counsel urged the court to dismiss the Defendants' application as same is filed to deprive the Claimant's right to fair hearing in presenting his case to this Honourable Court. 29. INCOMPETENCE OF THE DEFENDANTS' APPLICATION 30. It is the submission of counsel for the claimant that the Defendant's counsel in filing this suit failed and/or neglected to comply with Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007. 31. It is submitted that Section 2 of the Legal Practitioners' Act, provides that subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. Section 8 (2) of the LPA provides that no legal practitioner shall be granted audience in any court in Nigeria in any year unless he has paid the practicing fee for that year. Rule 9 (1) and (2) of the Rules of Professional Conduct (RPC) for legal Practitioners complementarily states that a lawyer shall pay his annual practicing fees not later than 31st March every year, and any lawyer in default shall not sign or file any document as a legal practitioner. Rule 10 provides that: "A lawyer acting in his capacity as a legal practitioner, officer or advise of any governmental department, of ministry or any corporation, shall not sign or file a legal document unless there is affixed to such document a seal and stamp approved by the Nigeria Bar Association. 32. For the purpose of this rule "Legal documents" shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions OJA any similar documents. If without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub rule 2 of this rule, and in any of the capacities mentioned in sub rule 2, the document so signed or filed shall be deemed not to have been properly signed or filed." (Emphasis supplied) 33. It is the contention of counsel for the claimant that the Defendants' counsel in filing this application failed and/or neglected to comply with Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007 by not affixing a seal to the processes. From the above statutory provisions above, it is clear that affixing of seal is a condition precedent to filing of any process in court by a legal practitioner. 34. It is the contention of counsel that the absence of the Defendants' solicitor's seal renders the application defective. In YAKI V. BAGUDU (2015) 18 NWLR (PT.1491) the apex court had this to say on the effect of failure to affix seal to court process thus at page 346 PARAS C-F: "I am of the opinion that ordinarily, any responsible member of the noble profession of lawyers will not sign or present any legal document which does not have his seal and stamp on it. This is to show authentication and responsibility. Therefore where a document is filed without the seal and stamp of the lawyer who prepared same, such document will be deemed not to have been properly signed and filed, and shall remain voidable until the necessary steps are taken to regularize same. Otherwise, if not regularized; the court may not countenance an improperly filed document. The rules are no doubt made by the professionals to protect and guard jealously the enviable legal profession that we all belong. In the instant case, there was no seal and stamp of the lawyer on the document objected to and there was no step taken to regularize the position." 35. Counsel contended that it is obvious from the above that failure to attach seal of legal practitioner to legal process renders the process voidable until it is remedied. Counsel contended that the application of the defendants having not been affixed with seal is incompetent and liable to be struck out. COURT’S DECISION: 36. I have considered the processes filed in respect of this application as well as the entire case file. After a careful perusal of the written and oral submission of counsel for both parties, I am of the view that the question to resolve the application before the court is ‘whether the defendants are entitled to grant of the prayers contained in the motion papers.’’ 37. Before delving into the issue for resolution, I shall thrash the objection of the claimant to the competency to the application under consideration. This is because if court finds the application to be in competent that end of the application without more. However, where the objection is found to be frivolous the substantive application will have to be determined by the court. 38. In the written address filed and adopted by counsel for the claimant in opposition to this application, counsel raised issue of competency of the application on the ground that the counsel for the defendant did not affixed his NBA seal. Counsel argued that the absence of NBA seal on the motion has rendered the application incompetent and liable to be struck out. 39. I have thoroughly examined the motion on notice dated 12/3/2019 signed by Jamilu Hamisu, Esq;which was filed at the registry of this court on 12/3/2019. It is patently clear for every discerning eyes that there is affixed to this application an NBA seal for Hamisu Jamilu, who signed the application with No. SCN059623, and the seal was stated to be valid till 2020. 40. In view of the glaring evidence in the record of the court showing that the defendants counsel has affixed his NBA seal to the motion on notice under consideration, the objection of the counsel for the clamant to the incompetency of the said motion lacked merit and same shall be discountenanced. In the circumstance the objection is hereby refused and same dismissed for being frivolous. If counsel has exercised circumspection and took time to conduct search in the case file this frivolous application would have been avoided. 41. Coming to the substantive application the defendants are asking the Court to set aside the two subpoenas issued to compel them to produce documents stated therein. Counsel for the defendant has in the affidavit in support, stated that they do not have any document Nigeria Security Regulation as adopted by state Security 1986, as stated in Subpoenae issued on 19/2/2018. It was also stated that the defendants are equally not in possession of the document sought to be produced before the Court as requested by subpoena issued on 15/1/2019. 42. The counsel for the claimant has vide paragraph 4 of the counter affidavit filed in opposition to this application admitted that the 2015 documents sought to be produced were not the correct documents. they want the defendants to produce. The counsel went on at paragraph 3.1 of the written address of the claimant to profusely apologized for what counsel termed as human error, counsel went on to thank counsel for the defendant for exposing the mistake. 43. If counsel has unequivocally admitted making mistake and requesting to be produced documents that are not in possession of the defendant, can counsel cry foul for his mistake and turn round to insist that the wrongly requested documents are still relevant to the claimant’s case. This I dare say capital NO, how can a document that does not have any relevance or nexus with the case of the claimant be relevant to his case, despite admission of errors and absence of any explanation as to what led to the error.in view of facts before the court, I hold that the documents requested by the claimant to be produced by the two subpoenas issued on 19/2/2018 and that of 15/1/2019, are not relevant to the claimant’s case before the court. 44. With the claimant’s admission that the document sought to be produced were not the documents meant to be produced goes to show that the claimant has misled the court in granting the subpoenas. 45. In judicial proceeding a court of law has the power or jurisdiction to set aside its own order in appropriate circumstance. To my mind this is one of such circumstances, in which this court can set aside its own order for having been misled in issuing the orders. See Ekanem Ekpo Out V ACB Internatonal Bank Plc & Anor. (2008) 3 NWLR (Pt.1073) 179 SC, (2008) LPELR-2827(SC), where Niki Tobi, JSC, (of blessed memory) stated thus: a. ‘’After all, the court is the owner of the order and it can do anything with it, like every owner of property.’’ 46. With the admission by counsel for the claimant to the effect that the dates for documents requested to be produced, were not correctly stated. Therefore, the said documents are not relevant to the case of the claimant, then, I do not see how the claimant will alleged violation of his fair hearing, if the court orders setting aside of the order made for production of the irrelevant documents. It is to be remembered that cases are determined based on facts presented before the court. The counsel for the Claimant has admitted that the documents stated to be produced are those of year 2015 and 1986, while the correct douments the claimant want to make use of are those of 2016 and 1981. In the circumstances, the claimant having admitted requesting for wrong documents to be produced is estopped from crying foul as he is the architect of his own predicament. 47. This application has brought out the need for counsel to always be circumspect in preparing document for filing before the court. 48. From all I have been saying above the evidence before the court has shown that the documents sought to be produced are not relevant to the claimant’s case since the documents claimant want to make use of are those for 2016, and not those of 2015, as stated in the subpoenas. The defendants have denied having in their possession documents stated in the subpoenas. In circumstances, the two subpoenas issued by this court on 19/2/2018 and 15/1/2019, were issued in error as the court was misled in issuing them, they are hereby set aside. 49. I make no order as to cost. 50. Ruling entered accordingly. Sanusi Kado, Judge REPRESENTATION: Abdulrazaq Alpha, Esq; for the claimant I. Awo, Esq; for the defendants.