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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE M. N. ESOWE DATE: 2ND FEBRUARY, 2015 SUIT NO. NICN/ABJ/235/2014 BETWEEN: MR. OYAMA FRIDAY ……………. CLAIMANT AND: 1. P W NIGERIA LIMITED 2. MR. KEVIN BAAY …………… DEFENDANTS 3. DOCTOR H. A. AJIBODE J REPRESENTATIONS IGNATIUS MATTHEW OVAT, Esq., for the Claimant NWACHUKWU A. OBINNA, Esq., for the Defendants R U L I N G The Claimant claims against the Defendants as follows:- A. AN ORDER of this Honourable Court declaring that the 1st Defendant was negligent in failing, neglecting or refusing to provide safety working apparels for the Claimant thereby resulting in the injury sustained in the Claimant’s right eye; B. AN ORDER of this Honourable Court declaring the 2nd Defendant’s instruction to the Claimant to break a dug-up concrete drainage with the E 82 Excavator by lifting it and allowing it to fall on the earth surface as wrongful and inappropriate; C. AN ORDER of this Honourable Court directing the 1st Defendant to comply with basic minimum work place safety standards in all its projects and industrial sites throughout Nigeria. D. AN ORDER of this Honourable Court declaring that the surgical operation carried out by the 3rd Defendant, upon the Claimant’s right eye, at the instance of the l Defendant was wrongful and amounted to gross medical negligence; E. AN ORDER of this Honourable Court declaring as dehumanizing and disrespectful the manner in which the Claimant’s injury was handled by the 1st 2nd and 3rd Defendants; F. The Claimant’s claim against the 1st Defendant is for the sum of N200, 000,000.00 (Two Hundred Million Naira) as damages for negligent conduct resulting in the damage suffered by the Claimant; G. The Claimant’s claim against the 1st and 2 Defendant is for the sum of N200, 000,000.00 (Two Hundred Million Naira) as general damages; H. The Claimant’s Claim against the 1st and 3rd Defendant is for the sum of N 20, 000, 000 (Twenty million Naira) being damages for wrongful surgical operation on the right eye of the Claimant; I. The Claimant also claims against the 1st Defendant the sum of N20, 000,000.00 (Twenty Million Naira) being cost for correctional surgery and other treatment procedures on his right eye; J. N5, 000, 000(Five Million Naira) only as cost of Litigation. The Claimant avers that the 1st Defendant was negligent in failing to provide the necessary protective apparels to the Claimant. PARTICULARS OF NEGLIGENCE: 1. Upon engaging the Claimant as Excavator Operator in August 2013, the 1st Defendant owed the Claimant the duty to immediately provide a safe and conducive working environment. 2. The 1st Defendant refused in several occasion to provide safety apparels such as eye shield, helmet, over-all dresses, hand gloves, walkie-Talkie etc to ensure safety of the Claimant at its job site despite repeated calls by the Claimant and Union members on the 1st Defendant to do so. Even the wind shield of the E 82 Excavator was in a state of disrepair. 3. The 1st Defendant on the 15th of May, 2014 refused to deploy a Breaker Caterpillar as he most appropriate machine to break the dug-up drainage but rather instructed the Claimant to perform such task with the E 82 Excavator Caterpillar. 4. The 1st Defendant ought to have known but failed, neglected or refused to realize the enormity of the injury inflicted on the Claimant’s right eye on the 15th day of May, 2014 by not immediately rushing the Claimant to a reliable eye specialist hospital allowing such critical condition to linger up until the 5th day of June, 2014. 5. The 1st Defendant on the 5th day of June, 2014 in collaboration with the 2r,d and 3rd Defendants diverted the treatment of the Claimant to an ill-equipped private eye clinic with the intention of keeping away such incident from public records and in total disregard of the health and well-being of the Claimant. The Claimant avers that the 3rd Defendant was Negligent: PARTICULARS OF NEGLIGENCE: 1. The 3rd Defendant owes his patients like the Claimant a duty of care to give them the best medical attention deserving of the dignity of his profession; 2. The 3rd Defendant ought to have known but failed to exercise reasonable caution in that he hastily operated upon the injured right eye of the Claimant on the 5th day of June, 2014, for an injury that occurred on the 15th day of May, 2014. 3. The 3rd Defendant failed, refused or neglected to seek and obtain the express consent of the Claimant before conducting a surgical operation on the Claimant’s right eye on the said 5th day of June, 2014. 4. The 3rd Defendant on the 5th day of June, 2014, ought not to have removed the outer lens from the Claimant’s right eye and replaced it with a dysfunctional In Ocular Lens Implant; 5. The 3rd Defendant on the 5th day of June, 2014 failed to appreciate the sensitivity and enormity of the Claimant’s condition as he sought to do the biddings of the 1st Defendant at the expense of his patient by diverting the treatment of the Claimant from a public hospital to his privately run clinic; 6. The 3rd Defendant ought to have informed the Claimant of a possible change of address in the event of relocation of his private medical facility and ought not to have rejected or refused to take the Claimant’s call on the 24th of June, 2014. On the 2nd October 2014, the Defence counsel entered appearance and on the same date, filed a Preliminary Objection pursuant to Order 5 rules 2(1) of the NICR 2007 and under Sections 97 and 98 of the Sheriff and civil Processes of the Federation 2004; and S254C of the Constitution (3rd Alteration) Act 2011. In his objection, the Defendant /Applicant prayed the Court to set aside both the issuance and service of the Originating process/writ of summons on the 3rd Defendant/Objector and strike his name from this suit. The GROUNDS of Objection were: 1) The 3rd Defendant was not served with any Originating Process of this suit. 2) The mandatory provision of Section 97 and 98 of the Sheriff and Civil Procedure Act, LFN 2004, which apply to service of originating process outside jurisdiction, was not complied with. 3) The alleged tort of medical negligence of the 3rd Defendant which occurred in Sagamu, Ogun State, is outside S254C of the Constitution (3rd Alteration) Act 2011 and therefore outside the jurisdiction of this Court. There was, alongside the Notice of P. O, a written address-in line with the Rules of this Court. Upon receipt of same, there was a Reply (on points of Law) by the Claimant/Respondent. Both counsel adopted their Addresses on the 1st of December 2014. WRITTEN ADDRESSOF DEFENDANT/OBJECTOR. Counsel submitted that this Court does not have the requisite procedural and substantive jurisdiction to entertain this suit against the 3rd Defendant. There is neither proper issuance of the originating process nor proper service of same in law, on the 3rd Defendant/Objector being outside jurisdiction. That it is elementary law that issuance and service of originating processes or of any process at all, be it interlocutory process must be duly served on a Defendant or Respondent, for the trial Court or appellate Court to be seized of jurisdiction to entertain the matter. He referred to Sken Consult V Ukey (1981) 1 SC 6; Ezomo V Oyakhire (1985) 1 NWLR (pt. 2)195; Adegoke Motors Ltd V Adesanya (1989) 3NWLR (pt 109) 250. Proper service is at the root of every proceeding before a court of law. Substantively this Court does not have the substantive jurisdiction to entertain a cause of action bothering on medical negligence. This is outside the exclusive jurisdiction conferred by S.254C of the Constitution (Third Alteration) Act 2011. See Coca — Cola (Nig.) Ltd. V Akinsanya (2013) I8 NWLR (pt 1386) 255 (full panel of Court of Appeal judgment). The Claimant’s claim/relief of damages for medical negligence which is a common law action in tort is outside the circumference/vires of the stated/itemized Constitutional amendment conferring exclusive jurisdiction on this Court to entertain such matters. He referred to Adetona V I.G. Ent. Ltd. (2011) 7NWLR (pt 1247) 535 per Galadima JSC, at p.557, para a-f; 7up Bottling Co. Ltd. V Abiola & Sons Ltd. (2001) I3NWLR (pt 730) 469; Trade Bank Nig. Ltd. Plc. V Benilux Nig. Ltd. (2003) 9NWLR (pt 825) 416. By way of prefatory remarks, counsel submitted that it is the law that a Preliminary Objection can be filed without any supportive affidavit, as same is predicated on points of law only. In the case of Attorney General of the Federation V All Nigeria Peoples Party (ANPP) and 2 others (2003) 18NWLR (pt. 851) 182, the Supreme Court per Niki Tobi JSC at p.207, para B-C, restated this position thus; “Preliminary objection, by its very nature deals strictly with law and there is no need for a supporting affidavit. In a preliminary objection, the applicant deals with law and the ground is that the court process has not complied with the enabling law or Rules of Court and therefore should be struck out. It could be on abuse of court process. If the preliminary objection is successful, the court will not hear the merits of the matter as it will be struck out.” In the present case, the Objector’s challenge is on points of law simpliciter and the undisputed facts herein are matters this Court can take judicial notice of S.122 (1) & (2) of the Evidence Act, 2011, being in the Court’s records. To counsel, this Court - National Industrial Court of Nigeria - like the Federal High Court is a creation of an Act of National Assembly. This is unlike the State High Courts created by the Laws of a State. Also just like the Federal High Court, it exercises jurisdiction “throughout the Federation”, see S.21 (1) of the National Industrial Court Act, 2006. However this provision does not detract from the Federal system of government enshrined in S.2 (2); S.3(2); Part I & Part II of the First Schedule of the 1999 Constitution as Amended, which made Nigeria a Federation of composite States. The Court was invited to take judicial notice of its records under S.122 (2) of the Evidence Act, 2011. The Claimant in Paragraph 27; 28 and 30 of the Statement of Facts pleaded thus; “27 The Claimant avers that the 1st Defendant Project Manager, one Tom spoke to Doctor Tolani of Alpha Clinic of Sagamu, Ogun State and that it was on the recommendation of Doctor Tolani that the 1st and 2nd Defendants who rushed the Claimant to the 3rd Defendant at a Teaching Hospital in Sagamu, Ogun State. 28 The Claimant avers that after preliminary examination and test at the Teaching Hospital, he was informed by the 3rd Defendant that…. 30 The Claimant avers that he was shocked after he realized a surgical operation was performed on his right eye at the Newsight Eye Clinic & Surgery located at 1, Akinsanya Street, Sagamu, Ogun State rather than a supposed public Teaching Hospital where he first consulted the 3rd Defendant……. “ By the above pleading the Claimant admitted that, the address of the 3rd Defendant is Teaching Hospital Sagamu, Ogun State. But the 3rd Defendant was allegedly served at the 1st Defendant’s office at No.9 Outer Northern Expressway, Maitama, Abuja, (the court can take a judicial notice of the writ of summons in its records). The Claimant by his above reproduced pleadings, averred that both his alleged cause of action against the 3rd Defendant and the address of the 3rd Defendant were all in Sagamu, Ogun State. The 3rd Defendant is not a staff or an employee of the 1st Defendant neither did the Claimant plead so. The 3rd Defendant ought to be served at his office address at the Teaching Hospital, Sagamu, Ogun State, which is outside the territorial jurisdiction of this Court. This Honourable Court is sitting in Abuja and not in Ogun State. In Paragraph 40 of the Statement of Facts the Claimant further alleged thus; “40 The Claimant avers that while the said clinic is no longer at the location and effort to locate the 3rd Defendant proved abortive, it is feared that the 1st Defendant has reportedly but surreptitiously terminated its contract with the 2nd Defendant and sent him back to Europe.” The above pleading confirms that the 3rd Defendant was not been served because according to the Claimant he cannot ‘locate the 3rd Defendant’. The Claimant did not seek leave of court to serve the 3rd Defendant in the last known place of business or address, i.e. by substituted means. The stark fact remains that the 3rd Defendant has not been served with the Originating Processes in this suit. On the issue of proper issuance of the writ, agreed there appears to be no provision in the Rules of this Court, for leave of this Court on issuance of an originating process for service outside jurisdiction of the Federal Capital Territory, Abuja. But Order 15 of the Rules of this Court envisage this lacuna. For it provides; “Where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the court may adopt such procedure as will in its view do substantiate justice to the parties” To counsel, the Rules of this Court recognize service outside jurisdiction. For example, Order 7 Rule 10 of the Rules of this Court provides that; “Where any person out of jurisdiction of the court is a necessary or proper party in a matter before the court and it is necessary to serve that person with the originating process or other document relating to the matter, the court may allow service of the process or such other document out of jurisdiction. “Out of jurisdiction” is nowhere defined by the Rules of this Court. However, it is our submission that “out of jurisdiction” in this case is “out of Federal Capital Territory, Abuja” in the light of S.2(2); S.3(1) & (2), Part I of the First Schedule of the 1999 Constitution as Amended. The Constitution is the supreme law of the land and is superior to any other legislation, statute or Act of Parliament. Reference was made to S.1 (3) of the 1999 Constitution as Amended. He referred also to McLaren V Jennings (2003) 3NWLR (pt 808) 470 per Salami JCA at p.488-489, para H-A. The importance of obtaining leave of court to issue an originating process meant for service outside jurisdiction was stated by the Supreme Court in the case of Odu’a Invest Co. Ltd. V Talabi (1997) 10 NWLR (pt 523)1 (adopting its earlier decision in Nwabueze V Obi Okoye (1988) 4NWLR (pt 91) 664) per Ogundare JSC, at p.26, para C-D, that; “Leave to issue a writ to be served out of the jurisdiction is not granted as a matter of course For the discretion to grant the leave sought is exercised judicially and with great care And as Chief F.R.A Williams SAN points out to us in his arguments in this appeal the question which is the forum convenient for the trial is one of the matter to be considered by court in the exercise of the discretion. Other matters are (1) the question of comparative costs and convenience and (2) the fact, if it exist, that proceedings in respect of same subject matter are already pending elsewhere…… So the application for leave to issue a writ which is to be served out of jurisdiction is not a mere formality.” Counsel submitted that leave of this Court is necessary before the originating process/writ of summons was purportedly issued on the 25th of August 2014 for service on the 3rd Defendant, who is and carries on business in Ogun State. Secondly, in law, there is a difference between the issuance of an originating process/writ of summons and service of same, see Adegoke Motors Ltd V Adesanya (supra). As reiterated by same apex Court in Owners of the MV “Arabella” V N.A.I.C (supra) per Ogbuagu JSC at p.206, para D-E, thus; “Secondly, and this is also settled, issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A writ may be valid while its service, (as in the instant case leading to the appeal), may suffer from some defect.” The Sheriff and Civil Process Act, Laws of the Federation 2004, is a statute applicable to all States in the Federation, on practice and procedure in all superior courts of records (in fact to all courts in Nigeria). The National Industrial Court, (this court) is a superior court of record. This is re-echoed by the full panel of the Court of Appeal in the recent case of Coca-Cola (Nig) Ltd. V Akinsanya (2003) I8NWLR (pt 1386) 255 per Bage JCA at p.364, para D-E, thus: “As stated earlier on, the National Industrial Court is the creation of Section 6 of the amended Constitution. Being a superior court of record which shall have all the powers of a High Court (see section 254 D (1). By section 240, the National Industrial Court is made one of the superior courts of record over which the Court of Appeal has appellate jurisdiction upon.” Also, the Sheriff and Civil process Act, Laws of the Federation, 2004, is further recognized by S12 (1) of the National Industrial Court Act, 2006 when it provides inter alia, that: “The jurisdiction vested in the court shall so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or In the absence of any such provisions, in substantial conformity with the practice and procedure of the court existing immediately before the commence of this Act.” S.97 of the Sheriff and Civil Process Act, Laws of the Federation provides; “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 (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).’ Also S.99 of same Sheriff and Civil Processes Act provides; “The period specified in writ of summons for service under this Part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the Court within which the writ of summons is issued, not less than that period”. Taking it seriatim, the provision of S.97 of the Sheriff and Civil Process Act, Laws of the Federation 2004 is a mandatory provision which must be complied with. The stipulated endorsement must be endorsed on the writ of summons/originating process of the Plaintiffs/Claimants being a process meant for service outside Federal Capital Territory, Abuja. This statutory provision is mandatory and violation thereof, renders the writ of summons a nullity. This is re-confirmed by the Court of Appeal in Bello V N.B.N (1992) 6 NWLR (pt 246) 206 per Achike JCA (as he then was) at p.2 19 thus; “It is clear that the provisions of S.97 of the Sheriff and Civil Process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under S.97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent” Also in the case of Kida V Ogunmola (2006) 13 NWLR (pt 997) 377, the Supreme Court per Oguntade JSC at p.398 para H, held thus; “Section 97 above prescribes that every writ of summons for service outside the state.... shall carry the endorsement set out in the section. It is only when this has been done, that the writ of summons can validly be served outside jurisdiction”. He referred also to Nwabueze V Obi-Okoye (1988) 4NWLR (pt 91) 644; Mako V Umoh (2010) 8NWLR (pt 1195) 82; Odu’a Invest. Ltd V Talabi (1997) 1ONWLR (pt 523) 1, SC. To the extent that the mandatory provision of S.97 of the Sheriff and Civil Process Act was not complied with, the writ of summons of the Plaintiffs/Claimants herein was not properly issued in the circumstance. This point is restated by same Supreme Court in Kida V Ogunmola (supra) at p. 399 para F, per Oguntade JSC thus; “In the instant case, as the issuance of the writ of summons, had not conformed with the mandatory provisions of section 97 of Cap 407, the writ of summons could not be served personally outside jurisdiction on the 2nd Defendant.” Also in the case of Owners of the MV “Arabella” V N.A.I.C (supra), the Supreme Court held per Ogbuagu JSC at p.207, para B, that; “I note that even the issuance of the said writ of summons which was not endorsed for service of the defendants outside jurisdiction, was rightly declared by the learned trial judge, as void. This is because of this mandatory nature of the provision of section 97 of the Act...” So the writ of summons of the Plaintiffs/Claimants herein being a violation of Sections 97 and 99 of the Sheriff and Civil Process Act is in the circumstance, null and void. It is a fragrant violation of S.99 of the Sheriff and Civil Process Act above reproduced, which prescribe a minimum of 30(thirty) days. In a similar argument that arose in the case of Owners of the MV “Arabella” V N.A.I.C. (supra), that the Federal High Court has territorial jurisdiction covering the entire country and therefore not bound by Sheriff and Civil Process Act, the Supreme Court debunked same and held per Akintan JSC, at p.220-221, para H-B, thus; “It is not in doubt that the provisions of the said Section 97 of the act (sic Act) are applicable in all High Courts, including the Federal High Court. The said provisions, in my view, have 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.” Counsel also referred to Touton S.A V G.C.D.N.Z.S.P.A (2011) 4NWLR (pt 1236) 1 per Okoro JCA at p.19 Counsel therefore urged this Court to strike out the name of the 3rd Defendant from this suit with substantial cost. REPLY ON POINT OF LAW TO THE 3RD DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION. INTRODUCTION The claimant by way of a Complaint dated 25th August, 2014 filed and served on the same day commenced this suit against the Defendants seeking declaratory and other reliefs. In reaction, the 3rd Defendant filed a Preliminary Objection to set aside the issuance and service of the originating processes on the 3rd Defendant/Objector and to strike out his name from the suit on grounds of procedural and substantive jurisdiction of the National Industrial Court to entertain the suit against the 3rd Defendant /Objector. It is therefore crucial to point out that the said Notice of Preliminary Objection filed by the 3rd Defendant in this suit on the of October, 2014 and served on the Claimant on the 10th of October, 2014, proceeded from the erroneous premise that To counsel, even more less consoling is another pillar of the 3rd Defendant’s point of Preliminary Objection to the effect that pursuant to Sections “2 (2); 3 (2); Part I & Ii of the First Schedule of the 1999 Constitution as amended, which made Nigeria a federation of composite states”, the National Industrial Court sitting in Abuja has no jurisdiction over the 3rd Defendant because his address and the act giving rise to the Claimant’s cause of action occurred in Ogun State. Following this Notice of preliminary Objection raised by the 3rd Defendant/Objector, the Claimant will now react accordingly to the said Notice of Preliminary objection. ISSUE FOR DETERMINATION Issue One “Whether by virtue of Section 254C- (1) (a) of the Constitution (Third Alteration) Act, 2011, the National Industrial Court has no jurisdiction over the common law tort of medical negligence; Issue Two Whether by virtue of Sections 2 (2); 3 (2); Part I & II of the First Schedule of the 1999 Constitution as amended, which made Nigeria a Federation of composite States”, the National Industrial Court sitting in Abuja has no jurisdiction over the 3rd Defendant because his address and the act giving rise to the Claimant’s cause of action occurred in Ogun State. LEGAL ARGUMENT: On issue one above, Section 254 (C) (i), states thus: “Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters- (a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, workers and matters incidental thereto or connected therewith. It is crystal clear from the facts admitted by all the parties in this suit that the Claimant is an employee of the 1st Defendant. It is also not disputed that the 3rd Defendant is the medical consultant of the 1st Defendant in specific relation to Claimant’s damaged right eye. Please refer Claimant’s Patient Lens Implant Identification Card marked “ANNEXURE E” and dated the 5th day of June 2014 issued by the 3rd Defendant/Objector to the Claimant on the 5th day of June 2014; also refer the last paragraph of page 1 of Medical Report pleaded by both 1st and 2nd Defendants in their JOINT STATEMENT OF DEFENCE as pleaded in Paragraph 16, to say the least, is the very import of Section 254 (C) (i) (a) quoted above and deliberately omitted in the 3rd Defendant’s submission. The 3rd Defendant/Objector in the instant suit also failed to furnish this Court with any manifest or express law precluding the National Industrial Court from assuming jurisdiction on the 3rd Defendant and medical consultant of the 1st Defendant/Respondent and so, cannot take benefit of his argument. On issue two above- Whether by virtue of Sections 2 (2); 3 (z); Part I & II of the First Schedule of the 1999 Constitution as amended, which made Nigeria a Federation of composite States, the National Industrial Court sitting in Abuja has no jurisdiction over the 3rd Defendant because his address and the act giving rise to the Claimant’s cause of action occurred in Ogun State, we will refer the Defendant/Objector to Section 254 A — (i) of the Constitution (Third Alteration) Act, 2011, which states that: “There shall be a National Industrial Court of Nigeria.” While it is critical and time saving to point here that the territorial jurisdiction of the National Industrial Court spans across the entire geographic territory of the Federal Republic of Nigeria as lucidly state above, it is also imperative to point here that the restriction of a court’s jurisdiction, is strongly forbidden. He referred the 3rd Defendant to the case of JUMBO v PETROLEUM EQUALIZATION FUND [2001] FWLR (Pt. 45), Pg. 651, H. 12, in which it was held thus: “The superior court of records guard jealously their jurisdiction and would not surrender that jurisdiction unless by express provision; the legislature must manifest a clear intention to take away that jurisdiction.” Counsel adopted the opinion in the celebrated case of MACFOY vs. UAC to the effect that “it is not only bad but incurably bad, for we cannot put something on nothing and expect it to stand, it will surely collapse.” Not only is the 3rd Defendant’s Preliminary Objection grossly unsupported by our written laws, but also that it stands diametrically opposed to it and so must fail. CONCLUSION To counsel, this Court is clothed with the jurisdiction to entertain all employee related matters and other matters incidental thereto in Nigeria by virtue of Sections 254A - (i) and 254C (i) (a) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) (Third Alteration) Act. He urged the Court to discountenance the Preliminary Objection raised by the 3rd Defendant in this suit in the interest of justice. I have considered the Application before me and the submissions for and against Application. I have reproduced the Submissions to a great extent indeed and therefore shall immediately proceed to the 3 Issues that have emerged for determination. These are: ISSUE 1 “Whether by virtue of Section 254C- (1) (a) of the Constitution (Third Alteration) Act, 2011, the National Industrial Court has no jurisdiction over the common law tort of medical negligence; Issue Two Whether by virtue of Sections 2 (2); 3 (2); Part I & II of the First Schedule of the 1999 Constitution as amended, which made Nigeria a Federation of composite States”, the National Industrial Court sitting in Abuja has jurisdiction over the 3rd Defendant because his address and the act giving rise to the Claimant’s cause of action occurred in Ogun State. ISSUE 3 Whether the 3rd Defendant was properly served the originating processes, On ISSUE 1,“Whether by virtue of Section 254C- (1) (a) of the Constitution (Third Alteration) Act, 2011, the National Industrial Court has no jurisdiction over the common law tort of medical negligence; As stated by counsel to the Respondent, It is crystal clear from the facts admitted by all the parties in this suit that the Claimant is an employee of the 1st Defendant. It is also not disputed that the 3rd Defendant is the medical consultant of the 1st Defendant in specific relation to Claimant’s damaged right eye. Counsel had referred to the Claimant’s Patient Lens Implant Identification Card marked “ANNEXURE E” and dated the 5th day of June 2014 issued by the 3rd Defendant/Objector to the Claimant on the 5th day of June 2014.The above and indeed the pleading of the Claimant shows that to the Claimant, the 3rd Defendant is guilty of Medical Negligence. But it is the law,-supported by plethora of cases that this Court does not have the substantive jurisdiction to entertain a cause of action bothering on Medical Negligence. This is outside the exclusive jurisdiction conferred by S.254C of the Constitution (Third Alteration) Act 2011. And was the dictum in the case of Coca — Cola (Nig.) Ltd. V Akinsanya (2013) I8 NWLR (pt 1386) 255 (full panel of Court of Appeal judgment). Medical Negligence is a common Law Action in tort and is outside the vires of the itemized Constitutional amendment conferring exclusive jurisdiction on this Court to entertain such matters. Therefore the Claimant’s claim/relief of damages for medical negligence which is a common law action in tort cannot be entertained by this Court. See the case of Adetona V I.G. Ent. Ltd. (2011) 7NWLR (pt 1247) 535 per Galadima JSC, at p.557, para a-f; 7up Bottling Co. Ltd. V Abiola & Sons Ltd. (2001) I3NWLR (pt 730) 469; Trade Bank Nig. Ltd. Plc. V Benilux Nig. Ltd. (2003) 9NWLR (pt 825) 416. On ISSUE 2 “Whether by virtue of Sections 2 (2); 3 (2); Part I & II of the First Schedule of the 1999 Constitution as amended, which made Nigeria a Federation of composite States”, the National Industrial Court sitting in Abuja has no jurisdiction over the 3rd Defendant because his address and the act giving rise to the Claimant’s cause of action occurred in Ogun State.” The jurisdiction of this Court is National. S12 (1) of the NICR 2007 provides that “The Court shall have and exercise jurisdiction throughout the Federation.” The division of the Court into divisions is just for administrative purposes. Section 254 A — (i) of the Constitution (Third Alteration) Act, 2011, which states that: “There shall be a National Industrial Court of Nigeria.” This is self explanatory. I disagree with the Defendant /Objector that this Court sitting in Abuja is restricted to matters arising from the FCT only. See the cases of………. ISSUE 3 Of utmost importance in this case is the contention of the Objector that the 3rd Defendant was not served with any Originating Process of this suit. It is trite learning that Proper service is the root of every proceeding before a court of law. It is also elementary law that issuance and service of originating processes or of any process at all, be it interlocutory process must be duly served on a Defendant or Respondent, for the trial Court or appellate Court to be seized of jurisdiction to entertain the matter over him. See the following cases: 1) Sken Consult V Ukey (1981) 1 SC 6; 2) Ezomo V Oyakhire (1985) 1 NWLR (pt. 2)195; 3) Adegoke Motors Ltd V Adesanya (1989) 3NWLR (pt 109) 250. In Paragraph 40 of the Statement of Facts the Claimant further alleged thus; “40 The Claimant avers that while the said clinic is no longer at the location and effort to locate the 3rd Defendant proved abortive, it is feared that the 1st Defendant has reportedly but surreptitiously terminated its contract with the 2nd Defendant and sent him back to Europe.” The above pleading confirms that the 3rd Defendant was not been served because according to the Claimant he cannot ‘locate the 3rd Defendant’. That being the case, the Claimant ought to have sought the leave of court to serve the 3rd Defendant in the last known place of business or address, i.e. by substituted means. Not necessarily because he is outside Abuja, but because being a necessary party, it is compulsory that he is personally served with the Originating processes The stark fact remains that the 3rd Defendant has not been served with the Originating Processes in this suit, and it is fatal to the case of the Respondent against the 3rd Defendant (the jurisdiction of the Court against him apart) From the above observations, the Court holds as follows: 1) The jurisdiction of the Court spans across the entire geographic territory of the Federal Republic of Nigeria. This Court can entertain and has been entertaining cases from all the geo-political zones of this Nation, upon the cases being assigned to it by the Hon. President of this Court in line with the Rules of this Court. As such, this Court sitting in Abuja can hear a case that emanated from Ogun State,-as in the instant case; provided it is brought properly before the Court. 2) Damage on Medical Negligence is outside the jurisdiction of this Court. The Jurisdiction is reposed on the High Courts. 3) The service of the originating process on the 3rd Respondent is not proper and therefore the Court has no jurisdiction to hear this case as it affects him. 4) This Court as constituted can only entertain Claims A, B, C, F, G, I, J. Until the 3rd Defendant is properly served with the originating process and brought before the Court on a charge within its jurisdiction, the Court strikes out the name of the 3rd Defendant from this suit. This is the Ruling of this Court. It is entered accordingly. …………………………………. HON.JUSTICE M. N. ESOWE.