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REPRESENTATIONS: J. C. Eze Esq. for the Claimant/Respondent D. I. Ajaba Esq. for the Defendants/Applicants RULING By a Complaint filed on the 7th May 2013, the Claimant seeks the following reliefs against the defendants: a. A Declaration that the Claimant whose monthly salaries and other emoluments have been stopped by the defendants vide the defendants letter of review of Appointment dated the 18th December 1987 and the defendants employee identity card issued to the claimant/other documentary proofs, hence entitled to all his monthly salaries and other emolument owed to him by the defendants. b. The Sum of One Million, Five Hundred and Twenty Five Thousand Naira (N1,525,000.00) only, being claimant’s monthly salaries and other emoluments held by the defendants from February 2010 to April 2013. c. The Sum of Ten Million Naira (N10,000,000.00) only as general damages for all inconveniences to wit hunger, deprivation, psychological torture and/or pain suffered by the Claimant as a result of the defendants failure, neglect and/or refusal to pay the claimant salaries and all emoluments and/or entitlements. When it became impossible to effect service of the originating processes on the defendants, the Claimants on the 8th day of October 2013, brought a Motion Ex-parte pursuant to Order 7 Rule (1) & (2) and Order 11 Rule (2) of the National Industrial Court Rules, 2007 for an order for substituted service of the complaint and all other processes of this court for service on the defendants/respondents in this suit by posting through registered post or through courier service to the defendants’ Lagos head office which is at ADEFILA & PARTNERS, Elder Dempstar Building (8th floor), 47 Marina Lagos, P.O Box 51357, Ikoyi, Lagos and by pasting same process at the defendants’ Port Harcourt branch office or last known address which is at ADEFILA & PARTNERS, Lass Building (2nd Floor) No. 206 Aba Road, Port Harcourt, Rivers State. The motion was granted as prayed. Thereafter, in compliance with the order of court, the processes were pasted at the last known address of the defendants. They were also sent by courier to the Lagos address of the defendants. Counsel to the Defendant filed a memorandum of appearance and a Joint Statement of Defence on the 20th day of November 2013. By a motion on notice dated 19th November, 2013 and filed on the 20th November 2013 and brought pursuant to Section 97 of the Sheriff and Civil Process Act, the Defendant/Applicant is praying the court for: “An order setting aside the writ of summons/complaint and other processes for failure to mark same for service out of jurisdiction.” In support of the motion on notice is an 8 paragraph affidavit deposed to by one Edafe Vudidi Administrative manager of Shalom Chambers. The Defendant /Applicant did not file any written address in support of this motion, but filed a written address/reply on points of law in reaction to the Claimant/Respondent’s Counter-Affidavit and Written Address. In reply, Counsel to the Claimant/Respondent filed an 8 paragraph Counter Affidavit deposed to by the Claimant/Respondent, as well as a written address canvassing arguments in opposition. The Applicant’s case is that the writ, having not been marked for service outside jurisdiction, offends Section 97 of the Sheriffs and Civil Process Act, and therefore robs this Court of jurisdiction to hear the suit. His lone issue for determination, based on Section 97 of the Sheriffs and Civil Process Act is: - Whether the originating process complies with the Sheriffs and Civil Process act in issuing service. He stated that it is clear from Section 95 of the Sheriffs and Civil Process Act that “writ of summons” includes all originating processes. Therefore, a Complaint under the NIC Rules would squarely come under that section. He submitted that it is also clear from the affidavit in support of the motion and proof of service via courier that the Defendants are in Lagos, so the process ought to have been issued for service in Lagos and endorsed as such. He Cited the case of ARABELLA V. N.A.I.C (2008) 11 NWLR (Pt. 1097) 182 at P.208 where the Supreme Court held approving the decision of the trial judge in NWABUEZE & ANOR vs. JUSTICE OBI-OKOYE (1984) 4 NWLR (Pt.91) 664, that where a defendant is outside jurisdiction no writs for service outside of jurisdiction, can be issued except by leave of the court. He stated that at Page 207 of Arabella’s Case (Supra), the Supreme Court held that failure to endorse the required notice on a writ of summons for service outside of a state where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent and goes to the root of the jurisdiction and affects the competence of the court. He submitted that the mere fact that a court’s jurisdiction is nationwide does not prevent the application of the foregoing section of the Sheriffs and Civil Process Act. In the Owners of MV “Arabella” v. N.A.I.C (Supra) the Supreme Court Per Akintan JSC at 220 and 221 held that: “It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts including the Federal High Court. The provision has nothing to do with the coverage of the jurisdiction of the Federal High Court which is nationwide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation.” He further stated that nothing can excuse the National Industrial Court from the application of the said section because it has the status of a High Court as it is a court of coordinate jurisdiction under the 1999 Constitution as amended by the Third Alteration Act. Furthermore by virtue of S.98 of the Sheriffs and Civil process Act, even the writ served in Port Harcourt should be struck out as it was not marked concurrent. He urged the court to hold that the Complaint, having not been endorsed for service outside jurisdiction, is fundamentally defective and therefore void. In opposition, Counsel to the Claimant/Respondent made submissions to the effect that Section 97 of the Sheriffs and Civil Process Act does not apply in this case, as the said section applies to service of writs out of Jurisdiction. Section 97 provides that: “Endorsement on writ for service outside state; 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 of the capital territory have endorsed there a notice to the following effect.” He further stated that the originating process served in the National Industrial Court is a complaint and not a Writ of Summons. Counsel also submitted that NIC is a Court in Nigeria by virtue of S. 254(A) to 254(F) of the 1999 Constitution of the Federal Republic of Nigeria. That the NIC covers all jurisdiction and the complaints was served on the defendant based on the order of Court by posting, and also served on the defendant in Port Harcourt division, all being within the jurisdiction the NIC. He therefore urged the court to strike out the defendants/applicants motion with a cost of N10,000.00. Counsel to Claimant, by way of verbal adumbration, further submitted that by Order 7 Rule and 5 NIC Rules, no leave is required to issue an originating process. He stated that Section 103(2) of the Sheriffs & Civil Process Act makes Section 97 of Sheriffs and Civil Process Act subject to the Rules of National Industrial Court. The same is categorically stated in order 6 Rule 8 of the NIC Rules which provides for the word may be issued and marked. He submitted that the use of the word “may” connotes optional and not compulsory. He further submitted that by Order 7 Rule 3 of the NIC Rules, this Court has the discretion to direct that service of any document be dispensed with or effected in a manner provided by these rules. He said the argument of the Defendants is baseless because pasting is enough service on the defendants. Because the cause of action arose in Port Harcourt putting the word concurrent can only be taken as an irregularity. Replying on points of law, counsel to the applicants stated that the NIC cannot derogate from the provision of Section 97 of the Sheriffs and Civil Process Act and the decision in M V Arabella’s case (Supra) where non-compliance with Section 97 was held to be a fundamental defect that renders the writ incompetent. He submitted further that the provision has nothing to do with the national geographic jurisdiction of NIC. If it appears that the address for service is outside jurisdiction, it should be so marked. He then urged the court to strike out the writ for being incompetent. I have carefully considered the submissions of the both parties. The question that arises is: “What is the effect of Section 97 and 103 of the Sheriffs and civil process act on the National Industrial Court Rules?” For the purpose of giving a proper answer to the above question, it is imperative at this point to reproduce the provisions of Sections 97 & 103(2) of the Sheriffs and Civil Process act. Section 97 provides thus: Every writ of summons for service under this part out of the State or Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such state or capital territory, have endorsed there on a notice to the following. “This summons (or as the case may be) is to be served out of………..state (or as the case may be) and in…..State” S.103 (2) provides thus: “Such service may, subject to any rules of court which may be under this Part, be effected in the same way, and shall have the same force and effect as if the service were effected in the state or the capital territory in which it was issued.” The OWNERS OF MV ARABELLA case upon which the applicant’s counsel has placed reliance is clearly distinguishable from this case. The Arabella case commenced as a suit under the undefended list at the Federal High Court. Under the undefended list procedure, service of originating processes on the adverse party is a threshold issue and condition precedent for the exercise of a Court’s jurisdiction. See the case of AMOS MOTORS NIG. LTD. vs. AGBOOLA (2012) LPELR-8011(CA). The suit presently before the court is not one under the undefended list and it was not commenced in the Federal High Court, but at the National Industrial Court. As much as service is of huge importance in a suit, it has been held that the purpose of service on parties is to bring the process to the notice and attention of the adverse party. This has been settled by the Supreme Court in ELMISKO IND. Vs. EXQUISITE INDUSTRIES (2003) FWLR (Pt. 151) page 184at 186. Per Ogundare JSC. In KIDA vs. OGUNMOLA (2006) 13 NWLR (Pt. 997) 377, the Supreme Court held that: “It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him.” (underlining mine). In the case before the court, the defendants have been served with the originating process, albeit by substituted means in compliance with the order of this court. The defendants have become aware of the claims against them and have filed their Statement of Defence. In ETIM & ORS vs. OBOT & ORS (2009) LPELR-4128(CA), the Court of Appeal held that once the existence of the suit has been brought to the notice of the adverse party and they have taken steps in the matter, they are deemed to have waived the irregularity complained of. More light was shed on this principle in the case of MAKO v. UMOH (2010) LPELR-4463(CA) where it was held thus: “All I have been saying to the question set out on this issue is that, non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rules of Court requiring leave of the court or a judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such noncompliance is entitled ex debito justitiae to have same set aside as was done in the cases of SKENCONSULT (NIG) LTD vs. UKEY (1981) 1 SC, NWABUEZE vs. OBI-OKOYE (1988) 4 NWLR (PT 91) 664, NEPA vs. ONAH (1997) 1 NWLR (PT 484) 680, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused." PER UWANI MUSA ABBA AJI, J.C.A (P. 33-35, paras. G-A) The defendants in this case had taken fresh steps when they filed a joint statement of defence. Having joined issues, they can therefore be seen to have waived the perceived irregularity complained of. BELGORE JSC has held in TOTAL INT. LTD. v. AWOGBORO (1994) 4 NWLR (Pt.337)147 that the "Procedural step of having substituted service may render a trial nugatory only if its effect is that it did not in fact lead to the service to attract knowledge of the party it was addressed to.” In this case, the substituted service has achieved its desired purpose of attracting the knowledge of the defendants to the existence of the suit; and they have indeed appeared and taken positive steps towards defending the action. Even if this court were to hold otherwise, it should be noted that the point has been repeatedly made by this court in holding that the Sheriffs and Civil Process act is not applicable to the NIC. Thus, objections based on failure of a claimant to seek leave to issue an originating process or make the endorsement required by S.97 of the Sheriffs and Civil Process Act on the complaint are bound to be dismissed as it was done in OLAMIJU v. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE (Unreported) NIC/LA/157/2011. In the National Industrial Court case of BRIGHT CHINEDU WODI vs. DIFFERENTIAL ALUMINIUM AND STEEL COMPANY LTD & ANOR, Suit No: NICN/CA/75/2012 (unreported), in a judgment delivered on the 21st day of January 2014, Hon. Justice B. B. Kanyip had this to say: “Not all courts are covered by section 97 of the Sheriffs and Civil Process Act; and I so find and hold. Since this is the case, I hold that this court is not covered in terms of the application of the said section 97. My view point is reinforced by section 36(1)(g) of the Trade Disputes Act Cap. T8 LFN 2004 which permits this court to do all such things or give such directives as are necessary or expedient for dealing especially with matters before it. This provision is reinforced by section 12(2) of the NIC Act 2006. This court was not set up to be bound by the sort of technicality that section 97 of the Sheriffs and Civil Process Act represents. Even aside from all of this, a look at section 97 of the Sheriffs and Civil Process Act will reveal that while its first part may apply to this court, its second part cannot; and statutes are to be construed holistically, not isolatedly. Section 97 provides as follows: “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 State or the Capital Territory, have endorsed thereon a notice to the following effect” (emphasis is the Court’s). From this provision, one will notice that references to State and Capital Territory implies territorial limitation in terms of the jurisdiction that the State High Courts or High Court of the Capital Territory suffers from, which this court does not, in view of section 21 of the NIC Act 2006. Secondly, in the underlined portion of section 97 quoted above, it can be discerned that aside from the endorsement required by section 97 itself, other endorsements may be required by State laws or laws applicable to the Capital Territory; again, the reference here conjures up the question of territorial law and limitations.” Kanyip J went further to state that: “In regards to this court therefore, which State or Capital Territory Law can be said to apply to warrant the further application of section 97 in the manner depicted by the underlined part of the section quoted above? I do not think, on the whole, that this court is contemplated for purposes of section 97 of the Sheriffs and Civil Process Act, and even if it is, [whether] the section can apply when the totality of the Trade Disputes Act and the NIC Act 2006 is taken. I must state that the cases of DENR Limited v. Trans Int’l Bank Limited [2008] 18 NWLR (Pt. 1119) 399 and Owners of MV Arabella v. NAIC [2008] 11 NWLR (Pt. 1097) 182 cited by the defendants were cases regarding the High Court, not cases where the cause of action was filed in this Court. The defendants did not show to this Court how this Court is contemplated under the Sheriff and Civil Process Act in order to be bound by DENR Limited v. Trans Int’l Bank Limited and Owners of MV Arabella v. NAIC. In this wise I agree with the submission of the claimant to the effect that sections 97 and 99 of the Sheriffs and Civil Process Act do not apply to processes emanating from this Court. My take, therefore, is that the emphasis in section 97 of the Sheriffs and Civil Process Act on service out of the State in which it was issued cannot be applicable to this Court especially if section 12(2) of the National Industrial Court (NIC) Act 2006, which permits the Court not to be formal, is taken note of.” I align myself wholly with the reasoning of my learned brother as outlined above. Non-compliance with Section 97 of the Sheriffs and Civil Process Act does not rob this court of jurisdiction to hear this matter, especially as Section 103(2) makes Section 97 subject to the Rules of Court. Order 7 of the NIC Rules regulates service of originating process. Rule (1) of Order 7 provides that service can be made “by delivery to any person personally or sent by registered post or courier or left at that person’s address for service or, where no address for service has been given, the registered office, principal place of business or last known address.” By Section 21(1) of the National Industrial Court Act, “The court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the president of the court into such number of judicial divisions as the President may from time to time, by instrument published in the Federal Gazette decide”. Given the National geographic jurisdiction of the court, the National Industrial Court generally holds that it is not contemplated under the Sheriffs and Civil Process Act 2004 for the purposes of the requirements of especially Section 97 thereof. See the case of IKEGBULAM vs. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA (2011) 23 NLLR (Pt. 65) pg. 263. In any event, this Court has no functional Court in Port Harcourt where the defendants reside. Cases coming from Port Harcourt are either heard in Owerri or Calabar where there are functional Divisions of this Court. This is one of the cases emanating from Port Harcourt Division as can be seen from the Suit number: NICN/PHC/60/2013. So the argument of the defendants that endorsement is required, is misconceived. Section 12(2)(a) of the NIC Act 2006 permits this Court not be bound by the kind of formality that the defendants seem to be praying for. For all the reasons given above, I hold that the defendant’s application fails and is hereby dismissed. The case will proceed to hearing. I award N10,000.00 cost in favour of the Claimant. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge