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BEFORE THEIR LORDSHIPS Hon. Justice F. I. Kola-Olalere - Presiding Judge Hon. Justice O. A. Qbaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATED: 16TH FEBRUARY, 2010 SUIT NO. NIC/LA/12/2009 BETWEEN 1. Captain Tony Oghide } 2. Captain Tanko Afegbua 3. C/E Godwin Ehiwe 4. SFE Anuoluwapo Ogunmola 5. SFE Funso Sunday Fabiyi 6. SFO Allan Bandele 7. SFO Anslam Okojie } Claimants 8. A/E Edward Owoicho 9. Mr. Olawale Amos Olajide 10. L/M Yahaya Baiyee 11. A/T John Anyanwu 12. Assit. O/M Gbaniga Ajose 13. L/M Oyinkro Olobio 14. L/M Adeyi Ameh 15. Assist O/M Dapo Afolabi } AND 1. Jason Air Ltd 2. Ade A. Babington ā Ashaye } Respondents (Liquidator of Nigeria Airways Ltd-in-Liquidation) REPRESENTATION Odiana Eriata with Rockwell Etor for the Claimants/Applicants S.M.O. Mohammed for the 1st Respondent RULING The matter was initiated before this court by complaint through which the claimants/applicants are claiming the following against the respondents. 1. A DECLARATION that the Claimants are entitled to their outstanding salaries as computed in Exhibit 'C' having worked for the 1st Defendant who had been paid part of her indebtedness by Nigeria Airways Ltd in liquidation. 2. A DECLARATION that the Claimants outstanding salaries form part of the Nigeria Airways in liquidation indebtedness to the 1st Defendant. 3. AN ORDER compelling the 2nd Defendant to pay to the Claimants their outstanding salaries between 1997 and 1998 in line with Exhibit 'C' which forms part of the claims of the 1st Defendant, against the Nigeria Airways in liquidation by the 2nd Defendant. ALTERNATIVELY AN ORDER compelling the 1st Defendant to pay the Claimants their outstanding salaries, between 1997 and 1998 in line with 'Exhibit Cā The complaint is followed with a 16 paragraphed statement of facts together with other attached documents. These processes were brought to the attention of the court after which the court directed that they be served on all the parties and a date was fixed for its mention. The processes were served on the claimants/applicants and the 2nd Respondent promptly, but the 1st Respondent couldn't be served after several attempts. The claimants/applicants then filed a motion ex-parte for an order for substituted service of the complaint, statement of facts and exhibits filed in the suit by pasting same on the wall and gates of the last known address of the 1st Respondent at No. 17, Salaudeen Akano Street, Ogudu, GRA, Ojota, Lagos. The motion was moved by the claimants/applicants, granted by the court but its enrolment order could also not be effected as a result of inaccurate address that was supplied by the claimant. The claimants/applicants then filed a motion on notice praying the court for an order of interlocutory injunction restraining the 2nd Defendant/Respondent who is the receiver of Nigeria Airways Ltd in liquidation, from paying or further payment of the outstanding indebtedness to the 1st Defendant/Respondent, its privies, agents or representatives pending the determination of the substantive suit between the parties. The 2nd Respondent was put on notice but did not react to it. This court granted the application on the 21st July 2009. While all of this was going on, the life span of the complaint and other originating processes against the 1st Respondent was spent without being served. The claimants/applicants filed this present exparte motion on 2nd December 2009, which was brought pursuant to Order 5 Rule 3, Order 6 Rule 4(2) and 7 Rule 1(3) of the National Industrial Court Rules 2007 and under the /ierent jurisdiction of this court. The motion is praying for the following:- 1. An order for departure from the rules by allowing the claimants to apply for the renewal of the claimants' complaint and other originating processes filed on 21st of April 2009 against the 1st Defendant/Respondent for failure to apply for the said renewal within the lifespan of six months or before the expiration of the said processes which had lapsed since the 21st of October 2009. 2. An order renewing the Claimants' complaint and other originating processes filed on 21st day of April, 2009 which life span had lapsed since the 21st of October, 2009 for want of service on the 1st Defendant before the said expiration. 3. An order for substituted service of the complaint and statement of facts on the 1si Defendant by advertisement in The PUNCH Newspaper or any other national dailies to be directed by this Honourable Court. The motion exparte is supported by a 15 paragraphed affidavit deposed to by Odiana Eriata, counsel to the claimants/applicants. The averments in the affidavit stated all the antecedents of this case especially the attempts by and all difficulties the claimants/applicants faced in serving the 1st respondent with the complaint and other originating processes without success until its lifespan was spent. The deponent averred particularly in paragraphs 3, 4, 5, 6 & 7 of the affidavit in support of the motion as follows: 3. This action was earlier filed against Shona-Jason Nigeria Ltd and Anor in Suit No. NIC/3/2008 but a certain counsel S.M.O. Mohammed Esq. represented the 1st Defendant and filed their defence showing that the claimants were employed by Jason Air Ltd and not Shona-Jason Nigeria Ltd. 4. The address of the 1st [Defendant as contained in the wet lease agreement betwee,p it and the Nigeria Airways Ltd is No. 17 Salaudeen Akano ptreet, Ogudu G.R.A. Lagos. 5. That the only available contact of the 1st Defendant within the jurisdiction is No 17 Salagdeen Akano Street, Ogudu G.R.A. Lagos as contained in the wet lease agreement with the Nigerian Airways in liquidation and the salary voucher for the 11lh claimants amongst others. Attached and marked 'Exhibit A and B' is a copy of the agreement and the voucher respectively. 6. That the claimants also explore the internet services to search for the address of the 1st Defendant whether in Nigeria or elsewhere, but to no avail see internet print out attached as Exhibit 'C' 7. Following the difficulty to serve the 1st Defendant with the originating process an order of substituted service by pasting was granted by this Honourable Court but yet the Registrars of this court could not paste because the only available address is 17A and 17B, hence the order lapsed without effecting service of the processes on the 1st Defendant. We have carefully considered the facts of this case, the motion exparte for renewal of claimants' complaint and other originating processes filed on 2nd December 2009, the facts deposed to in the affidavit in support of the motion and the provisions of the rules of court under which this application was brought. From our record we find that the claimants/applicants did not just file their complaints and other originating processes and go to sleep. They made frantic efforts to ensure that the respondents were served promptly and this informed the service of the originating processes on the 2nd Respondent within time. In addition the claimants/applicants filed an exparte application for substituted service which was moved and granted by court but the order could not be effected because of incorrect address supplied. In other words the claimants/applicants have been diligent in ensuring that the 1st Respondent was served with the originating processes before its life span expired. We are therefore satisfied that the incorrect address of the 1st Respondent provided in this case made it impossible to effect service by substitution as ordered by the court on the 2nd July 2009. Even though the claimants/applicants did not apply for renewal before the lifespan expired, we are prepared to direct a departure from Order 6 Rule 4 (2) of National Industrial Court Rules 2007 in line with the provisions of Order 5 Rule 3 of the National Industrial Court Rules 2007 in the interest of justice. In Michael Kolawole Vs. Pezzamy Alberto (1989) NWLR (pt 98) 382 at 397 Per CRAIG JSC said: "I think the provision about applying for renewal within the valid life of the Writ may have led many to assume that unless the Writ is made within twelve months, it cannot be made afterwards but it is obvious that if the Rule were interpreted in that manner, it would work hardship on the plaintiff. It seems to me that such a provision has been inserted in the rule in order to distinguish a vigilant plaintiff from a lethargic one. Obviously a vigilant litigant would in accordance with the Rule, apply before the Writ actually expires, but this does not mean that a litigant who applies soon afterwards should not be heard" Also at page 402 of the same report, Per Nnamani JSC states as follows: "a plaintiff can apply to the court for the renewal of a writ of summons either before or after the expiration of the twelve months." With the authorities of Order 5 Rule 3 of National Industrial Court Rules 2007 and decision in the Michael Kolawole Vs. Pezzanni Alberto supra, we order a departure from Order 6 Rule 4(2) of the National Industrial Court Rules in the interest of Justice and renew the claimants' complaint and other originating processes filed on 21st April 2009 with effect from today 16ih of February 2010 for another period of three months. However we refuse prayer No.3 in this motion for an order of another substituted service of the renewed processes on the 1st Respondent. This is because a counsel by name Mr. S.M.O. Mohammed has filed a memorandum of appearance for the 1st Respondent in the course of this proceedings and we take judicial notice of that fact. We therefore direct that service of the renewed complaint and other originating processes in this case be effected on Mr. S M.O. Mohammed counsel to the 1st Respondent in line with the provision of Order 7 Rule 2 (2) of the National Industrial Court Rules 2007. Ruling is entered accordingly. We make no order as to cost. Hon. Jusfice F. I, Kola-Dialere Presiding Judge Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu - Fishim Judge Judge