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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge WEDNESDAY 18th DECEMBER, 2013 SUIT NO: NICN/ABJ/203/2013 Between: Mr. Victor Ighile and 3 Others Claimant AND Mr. David Ikhuoria and 2 Others Defendant REPRESENTATION Parties absent; P.Y. Musa Esq. for the defendant /applicant; No legal representation for the claimant/ respondent; RULING By a motion on notice dated the 26th of August 2013 but filed on the 27th August 2013, the defendant/ applicant is praying the court to strike out the entire suit on the ground that it is not competent having not fulfilled the condition precedent as the suit was instituted in Abuja but served in Benin city without obtaining the leave of this court contrary to the mandatory provision of section 97 of the Sheriff and civil process Act Cap S.6 laws of the Federation of Nigeria 2004. The application is supported by an 8 paragraph affidavit deposed to by P.Y Musa Esq. on behalf of the defendant / applicant. There is also a written address filed in support of the defendant/ applicants position. The written address is dated the 26th August 2013 and raises or postulated a lone issue for determination. “ Whether the claimant / respondents suit is not incompetent for failure of the claimant/respondents to endorse on the complaint the mandatory endorsement in compliance with the mandatory provisions of section 97 of the Sheriff and civil process Act Cap S. 6 laws of the Federation of Nigeria, 2004. It is the contention of the defendant/ applicant counsel that the failure of the claimant /respondent to comply with the provision of section 97 aforsaid has invariably denied this Honourable court the jurisdiction to proceed and adjudicate on this case as jurisdiction is very vital and central in any judicial process. Counsel call in aid the cases of Ohakim Vs. Agbaso (2010) 19 NWLR Pt. 1226 P. 172 at 216 Paragraph E – F. A.G. Federation Vs. Abacha (2010) NWLR Pt. 1221 P.1 at P. 28 Paragraph F- H. Madukolu Vs. Nkemdilim (1962) NSCC 374 at 379 – 380. Counsel also submitted that issue of jurisdiction can be raised at any stage of the proceedings and when so raised it should be determined first. Counsel referred this court to the case of House of Rep Vs. SPDCN 2010 11 NWLR Pt. 1205 P. 213 at P. 236 paragraph C- G., F.H.A Vs. Kalejaye (2010) NWLR Pt. 1226 at P. 164 paragraph A. It is also the submission of counsel that where a mandatory provision such as section 97 of the Sheriff and civil process Act laws of the Federation of Nigeria 2004 is not complied with, such failure goes to the root as a fundamental defect and not as a mere irregularity. Counsel cited the cases of: Owners Mv Arabella Vs. Nigeria Agricultural Insurance Corporation 2008 11 NWLR Pt. 1097 P. 182 at 207 paragraph B –E Bello Vs. National Bank of Nigeria Ltd (1992) 6 NWLR (Pt. 246) 206 at 217 -218 CA NEPA Vs. Onah 1997 I NWLR Pt. 484 P. 680 at P. 690 paragraph C –E Counsel finally submitted that the mere filing of appearance conditionally does not mean that he has taken Step for the purposes of preventing him from raising any objection as he has not in any way waived his right. Counsel urged the court to be bound by Arabella case and up hold his objection. There is no legal representation for the claimant/respondent even though hearing notices were duly issued and served on them. Moreover, the court’s directive made on the 30th of October 2013 to the effect that the defendant counsel write a letter to the claimant counsel was effected. A courtesy copy of that letter was sent to this court showing clearly that the said letter duly endorsed was received by the claimants counsel on the 29th of November 2013. Since there is no reaction from the claimant/respondent, I have no option than to limit this ruling to the submission of defendant /application counsel. I have carefully read and considered the argument and submissions of the defendant/applicants counsel as stated in his motion, affidavit, his written address and his oral submissions. The lone issue for determination in this motion is whether this court is bound by the provision of section 97 of the Sheriff and Civil process Act laws of the Federation Cap S. 6 2004. Section 97 of the Sheriffs and civil process Act Cap S. 6 laws of the Federation of Nigeria 2004 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, 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………….” From the above provision, it can be inferred clearly that reference to state and capital territory implies territorial limitation in terms of the jurisdiction that the State High Court or the High Court of the Capital Territory suffers from. The law under consideration specifically used the word “High court” and magistrate court where applicable. The courts contemplated for the application of the Sheriff and Civil Process Act are specifically provided for. A cursory look at that law shows that section 97 comes under part vii of the Act. The use of the word “court” therein is define to mean a court to which parts iii, iv, v and vii applies. Only in part iii is the word ‘court’ defined to include “ the High Court of the Federal Capital Territory Abuja or of the state” and judge is defined to mean “a judge of the High Court”. In part ii of the Act, court also extend its meaning to include “a high court and a magistrate court” By the above use of the word, “High court” and a “judge” , one may be tempted to argue that the Act in question covers all courts of coordinate jurisdiction. This may run foul of good reasoning and may extremely be perverse because, one may be tempted to include the Customary court of Appeal and the Sharia Court of Appeal in this extended interpretation which was never contemplated by the law makers. Not all courts, to my mind are covered by the provision of this Act. Take for instance the court of appeal and the Supreme Court acting in their original jurisdiction. Does it mean that the Act is applicable to these courts? Certainly No!. The case of Owner of MV “Arabella” Vs. Nigerian Agricultural Insurance Corp. (Supra) relied heavily by the defendant/applicant counsel cannot be of help in view of the position stated above. By the provision of section 2 I (i) of the National Industrial Court Act 2006 the whole country called Nigeria has only one territorial jurisdiction for the purpose of adjudication. For the benefit of doubt, I quote; 21 (I) “The court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation 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 and may, designate any such judicial Division or part thereof by such name as he thinks fit. Assuming without conceding that the court is contemplated by the provision of section 97 of the Sheriff and Civil process Act, Cap S. 6 laws of the federation of Nigeria 2004, with the ideals of flexibility and informality that this court is expected to conform with, in the discharge of its mandate as a labour court and, a specialized court, it is my humble view, that it is not bound by the Act. I am fortified by the provision of section 12 (2) (a) of the National Industrial Court Act 2006 which provides as follows:- “Subject to this Act and any rules made there under, the court may regulate its procedure and proceedings as it thinks fit”. Moreover, section 36 (I) (g) of the trade dispute Act Cap. T 8. Laws of the Federation of Nigeria 2004 gives this court the powers to do all such things or give such directions as are necessary or expedient for dealing speedily with matters before it. From the above, it is crystally clear that this court was not set up to be bound by the sort of technicality that section 97 of the sheriff and Civil Process Act represents. From the totality of all what I have said so far including the reasoning and the provisions of the law, the defendant /applicants preliminary objection lacks merit and is hereby dismissed. The matter shall proceed to trial and I make no order as to cost. ----------------------------- Hon. Justice P.O Lifu JP. Judge