IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.

 

 

DATE: MAY 14, 2019 SUIT NO. NICN/AWK/31/2018 

 

BETWEEN:

Mr. Micheal Onyebuchi Ugboaja............................................................Claimant

 

AND

Total E & P Nigeria Limited...................................................................Defendant

 

REPRESENTATIONS

Sir CDS Omon-Irabor with J.A. Emonefe and Kelechi Oko, for the Claimant

B.U. Ukachukwu, for the Defendant.

 

RULING

On  the 10th October, 2018, the claimant by General Writ of Summons filed this suit against the defendant claiming the following:

The sum of N1, 500,000,000.00 (One Billion, Five Hundred Million Naira) as compensatory damages for the risk on the air, land and on the high sea.

The sum of 300,000,000.00 (Three Hundred Million Naira0 as special and general damages for the suffering, humiliation and embarrassment occasioned by the act of the defendant.

 

Filed along with the general complaint are statement of claim; list of witness; witness statement on oath of Mr. Onyebuchi Ugboaja and  list of documents to be relied upon at the trial.

 

On the 19th November, 2018, the defendant through their counsel filed a conditional memorandum of appearance. 

 

On 14th December, 2018, the defendant filed Defendant’s Statement of Defence and counter-claim thereto. Also filed along with the statement of defence are witness statement on oath of one Mr. Victor Isoma, Head, Employee Relations and Benefit of the Defendant; list of documents and list of Defendant’ (sic) list of witnesses (sic).

 

On the 19th November, 2018, the defendant through their counsel filed notice of preliminary objection brought pursuant to Order 13 Rules 6 (2), 14 (2) and 15 (1), Order 18 (1) and Order 30 rule 18 (1) (a) of the National Industrial Court (Civil Procedure) Rules 2017, Section 37 of the 1999 Constitution, Section 97 of the Sheriff and Civil Processes Act and under the inherent jurisdiction of this Honourable Court praying for the following Orders:

An order of this Honourable Court striking out this suit in its entirety for being an abuse of court processes arising from multiplicity of suits.

An order of this Honourable Court striking out the writ of summons/complaint in this suit being incurably defective and incompetent.

The ground (sic) upon which the application is brought are:

That a cursory look at the claimant’s statement of claim and documents he intends to rely upon will reveal that this suit amounts to a multiplicity of suits as it is an exact replication of the claimant’s action in suit no: NICN/AWK/07/2017 currently pending before this Honourable Court.

The writ of summons/complaint in this suit meant for service out of the Anambra State of Nigeria and in the River State of Nigeria was not endorsed in accordance with the provisions of Sections 97 of the Sheriffs and Civil Process Act, Cap S6, Laws of the Federation of Nigeria, 2004.

 

Filed in support of the notice of preliminary objection is a 10-paragraph affidavit deposed to by one Nissi Ogbonna (Miss), a legal practitioner in the law firm of counsel to the defendant/applicant. Also filed is written address in support of the preliminary objection where counsel to the defendant raised two issues for determination of this court, to wit:

Whether this suit does not amount to a multiplicity of suits as it is an exact replica of Suit No. NICN/AWK/07/2017 already pending before this Honourable Court resulting in an abuse of the processes of this Honourable Court.

Whether this Honourable Court has the jurisdiction to entertain this suit in view of the fact that issuance and service of the writ of summons/complaint in this suit violates the provisions of section 96 (2) and 97 of the Sheriffs and Civil Processes Act, Cap S6, Laws of the Federation of Nigeria, 2004.

 

In reaction, the claimant/respondent on the 21st January, 2019, filed 8-paragraph counter affidavit deposed to by one Kelechi Uko, a legal practitioner in the law firm of counsel to the claimant. Also filed in reply to the notice of preliminary objection is a written address.

 

THE ARGUMENTS AND SUBMISSIONS OF THE DEFENDANT/APPLICANT

Nissi Ogbonna (Miss), legal practitioner of PrimeLaw Partnership, Plot 25, Trans Amadi Industrial Layout, Port Harcourt deposed to an affidavit in support of the notice of preliminary objection filed by the defendant/applicant and states that she is conversant with the facts of this case; that she has the authority and consent of her employers and the defendant to depose to this affidavit; that the facts to which she now depose(sic) are facts which came to her knowledge by virtue of paragraph 1 above being facts which she is conversant with and also facts given to her by the defendant at their office at Plot 25, Trans Amadi Industrial Layout, Port Harcourt on November 13, 2018 at about 11:30am and she verily believed them to be true.

 

That there is already a pending suit before this Honourable Court with Suit No. NICN/AWK/07/2017 between the claimant herein and the defendant and two others; that the claimant in this suit is also the claimant in Suit No. NICN/AWK/07/2017 while the defendant in this suit is the 1st defendant in Suit No. No NICN/AWK/07/2017; that the facts contained in the statement of claim in this suit is also an exact replica, word to word, of the facts contained in the Amended Statement of claim in Suit No. NICN/AWK/07/2017 already pending before this Honourable Court and which is ripe for hearing. A copy of the Statement of Claim in Suit No. NICN/AWK/07/2017 is marked Exhibit “A”.

 

That the subject matter in this suit is the same as the subject matter in Suit No. NICN/AWK/07/2017; that she has also examined the Writ of Summons/Complaint in this suit; that she has seen the defendant/appli cant’s address for service as endorsed on the said Writ of Summons/Complaint is in Port Harcourt, River State, Nigeria. A copy of the Writ of Summons/Complaint was shown to her and marked Exhibit “B”.

 

That she has examined the said Writ of Summons dated the 10th day of October, 2018 and filed on the same date; that she had noticed that the said Writ of Summons was not and is not endorsed for service outside Anambra State of Nigeria and in Rivers State of Nigeria respectively; that the defendant/applicant entered a Conditional Appearance in this suit; that the defendant will be grievously prejudiced by the refusal of this application; that it will be in the interest of justice to grant this application; that she makes this affidavit in good faith and in accordance with Oath Act.

 

Learned counsel to the defendant/applicant in the written address in support of the preliminary objection raised two issues for determination of this court, to wit:

Whether this suit does not amount to a multiplicity of suits as it is an exact replica of Suit No. NICN/AWK/07/2017 already pending before this Honourable Court resulting in an abuse of the processes of this Honourable Court.

Whether this Honourable Court has the jurisdiction to entertain this suit in view of the fact that issuance and service of the writ of summons/complaint in this suit violates the provisions of section 96 (2) and 97 of the Sheriffs and Civil Processes Act, Cap S6, Laws of the Federation of Nigeria, 2004.

 

On Issue One, learned counsel to the defendant/applicant contended that it is now a settled law that one of the essential requirements for the exercise of  Court’s jurisdiction is that the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Learned counsel referred to the cases of Odofin v. Agu (1992) 3 NWLR (Pt. 229) pg. 350 at 365 and Leedo v. Bank of the North (1998) 7 SCNJ 328 @(sic) 332.

 

Learned counsel further submitted that what constitutes cause of action in a matter is the entire set of facts or circumstances giving rise to an enforceable claim. It also includes all the things necessary to give a right of action and every fact which is material to be proved to entitle the plaintiff to succeed. Learned counsel to the defendant/applicant referred to the cases of Adewusi v. Popoola (2004) FWLR (Pt. 194) page 636 at 650; Union Bank of Nigeria Plc v. Agu (2005) 2 FWLR (Pt. 258) page 1018 at 1026 and  Nicon Insurance Corporation v. Olowoofoyeku (2005) 3 FWLR (Pt. 275) page 853 to 863-864.

 

The learned counsel to the defendant/applicant further contended that the claims of the claimant in this suit and the facts upon which they are dependent are as disclosed on the claimant’s Statement of Claim; and upon the total reading and examination of all the facts alleged in the statement of claim; that the claimant’s suit is an exact reproduction of Suit No. NICN/AWK/07/2017 already pending before this Honourable Court and in which the parties are the same as in this suit. Reference was made to N.D.I.C v. UBN Plc (2015) 12 NWLR (Pt. 1473) 246 at 290 and 305-306 where Court of Appeal held that:

“There is an abuse of court process where a party has instituted a multiplicity of suit against the same opponent in respect of the same subject matter and on the same issues. In simple terms, it is an action which is one or more too many. To constitute an abuse of court process, the parties and the issues raised in the different suits must be the same.”

Finally, learned counsel to the defendant/applicant urged the court to resolve Issue 1 in favour of the defendant/applicant and strike out this suit for amounting to multiplicity of suits and for being an abuse of court process.

 

On Issue Two, it is the contention of the learned counsel to the defendant/applicant that the law is trite that for the purpose of service of a Writ of Summons outside the jurisdiction of the issuing state, the said Writ of Summons in order to be valid must have endorsed on it a notice to the effect that it is to be served in another state other than the issuing state. Reference was made to Section 97 Sheriffs and Civil Process Act. To the learned counsel, Section 97 Sheriffs and Civil Process Act is very mandatory and a Writ of Summons issued for service out of Anambra State must be so endorsed  in accordance with the provisions of Sheriff and Civil Process Act. Learned counsel cited the cases of Nwabueze v. Okoye (1998) 3 N.S.C.C. 53 at page 70-71 and Co-operative & Commerce Bank (Nig.) Plc v. A-G of Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556. 

 

Learned counsel to the defendant/applicant further submitted that in the absence of the mandatory endorsement on the Writ of Summons in this suit as prescribed by the provision of Section 97 Sheriffs and Civil Process Act, the said Writ of Summons is not only defective but incompetent and it cannot be said to have fulfilled the condition precedent laid down by that section which is essential to the exercise of jurisdiction by this Honourable Court. Learned counsel referred to the case of Owner of MV “Arabella” v. Nig. Agric. Ins. Corp. (2008) 4-5 SC (Pt. II) 189 at 226-227.

 

Finally, learned counsel to the defendant/applicant urged the court to resolve Issue Two in favour of the defendant/applicant and strike out this Writ of Summons and set aside its service on the defendant/applicants (sic) for being defective and incompetent.

 

THE ARGUMENTS AND SUBMISIONS OF THE CLAIMANT

Kelechi Uko, a legal practitioner in Odegua Chambers of No. 14 Effurum Sapele Road, Enerhen Junction, Warri deposed to an affidavit and states that he is conversant with facts deposed to in this affidavit; that he has the consent and authority of the claimant and that of his office to depose to this affidavit.

 

That he has gone through the defendant/applicant’s application and the affidavit in support thereof and he verily understood same; that the claimant denies paragraph (sic) 1-3 of the defendant’s affidavit in support of the its preliminary objection; that in response, he states that parties are not the same in this suit and suit no: NICN/AWK/07/2017.

 

That paragraph (sic) 4 and 5 are hereby denied; that they are tissues of lies within the imagination of the Applicant and in response, the defendant/respondent (sic) states that the fact may be similar but they are not impair-material (sic); that the subject matter is quite different as the rex in contention in Suit No: NICN/AWK/07/2017 is whether it is lawful to terminate an appointment when the matter is pending in court; that the issue in Suit No: NICN/AWK/31/2018 is a claim for a liquidated damages and breach of contract.

 

That having altered the position of the claimant from London to South Africa, South Africa to Abuja, and from Abuja to Port Harcourt Rivers State; and suddenly, the “air cracked” and claimant is left in the middle of no-where; that the paragraph (sic) 6, 7, 8, 9 (sic) are not issues of fact that should be contained in the affidavit but stricto-sensu issues of law that don’t need to be countered; that he depose to this affidavit bonafide.

 

In reply to the issues raised in the written address filed by the defendant/applicant in support of the notice of preliminary objection, learned counsel to the claimant/respondent submitted on Issue One that their main contention in this suit is refund of money held and received in liquidated damages and breach of contract and the alteration of the position of the claimant. To the learned counsel to the claimant, what the claimant seeks in this suit is restitution interregnum ab initio; that the claimant is not seeking for re-statement but compensatory damages for injuries suffered for Ubi jus ibi remedum (where there is damages there must be remedy). On this the learned counsel submitted that the facts of this case is not same with the facts in Suit No: NICN/AWK/07/2017. 

 

Learned counsel to the claimant urged the court to discountenance the defendant’s Issue One and resolve same in favour of the claimant.

 

On Issue Two, learned counsel to the claimant submitted that the jurisdiction of this Honourable Court is the Federation of Nigeria (sic) and therefore the provisions of the Sheriffs and Civil Process Act does not come to play as it cannot override Order 7 of the Rules of this Honourable Court. To the learned counsel to the claimant, the argument of learned counsel to the defendant that a Writ of Summons issued out of the National Industrial Court must be endorsed before it can be served outside Anambra State is a non sequitor, argumentum tut propta hock, afortiori and same should be discountenanced.

 

In all, learned counsel to the claimant urged the court to strike out the notice of preliminary objection filed by the defendant in limine with crushing cost.

 

DEFENDANT’S REPLY ON POINT OF LAW TO THE CLAIMANT’S COUNTER-AFFIDAVIT FILED ON JANUARY 21, 2019

On the claimant’s legal argument premised on the case of Olukunmi Olaifa v. Chairman, Ibadan North East Local Government & anor (2009) All FWLR (wrongly cited by claimant), the defendant submitted that claimant’s argument is without basis as the claimant was unable in any way whatsoever to supply this court with facts which distinguishes the two suits and goes to show that they cannot be determined if lumped together; that the decision was a decision of the Court of Appeal sitting at Ibadan and not that of the Supreme Court of Nigeria; that there is no place in the entire body of the judgment where the Court of Appeal held as falsely alleged by the claim that: “where the issue for determination is different and the subject matter may be similar even though arising from the same set of facts but cannot be determined if and when lumped up with the other case the court should not and will be able to distinguished (sic) between the cases and consider each case on its own merit”.

 

The defendant submitted that the two suits from the facts available before the court are one and the same, arising from the same facts, between the same parties, on the same issues and can be comfortably and conveniently determined by this court without any miscarriage of justice whatsoever; that this suit effectively amounts to a multiplicity of suits over the same subject matter and between the same parties.

 

On the claimant’s contention that his main claim in this suit is for “refund of money held and received in liquidated damages and breach of contract and the alteration of the position of the claimant”, the defendant submitted that this is not part of the claim of the claimant in this suit; that for the avoidance of any doubts whatsoever, the claimant in this suit claims for:  (a). The sum of N1,500,000,000.00 (One Billion, Five Hundred Million Naira) as compensatory damages for the risk on the air, land and on the high seas with a view to earning his severance allowance, life insurance, sum assured, gratuity and pension. (b). The sum of 300,000,000.00 (Three Hundred Million Naira) as special and general damages for the suffering, humiliation and embarrassment occasioned by the act of the defendant. The defendant submitted that nowhere in this suit did the claimant raise any issues or furnish any facts to establish any case of “refund of money held and received in liquidated damages and breach of contract” from a third party as claimant is now claiming; that the claims in this suit could have been comfortably determined by this court in Suit No. NICN/AWK/07/2017 without the need for this present suit.

 

In response to the claimant’s submission that the defendant cannot approbate and reprobate having filed its defence and counter-claim, the defendant submitted that according to a plethora of decisions, the claimant’s statement of claim is the only process this court is bound to look at, at this stage of the proceedings. Reference was made to Olukanmi Olaifa v. Chairman, Ibadan North East Local Government & anor (2009) All FWLR (pt 455) page 1724 at 1735; Lawal v. Governor of Kwara State (2005) 1 FWLR (pt 250) 106 at 119; Societe v. Charzin Ind. Ltd (2006) 1 FWLR (pt 229) 529 at 551 and Jang v. INEC (2004) 12 NWLR (pt 856) 46 at 57-58.

 

On the service of the originating processes of this Honourable Court on which the claimant asserts that the provisions of the Sheriffs and Civil Processes Act cannot override the Rules of this Honourable Court with regards to the service of its processes, counsel once more referred the court to the very recent Supreme Court of Izeze v. INEC (2018) 11 NWLR (1629) 110 at 129-130.

 

COURT’S DECISION

I have considered all the processes filed in this suit and the submissions of the learned counsel to the parties. The defendant/applicant contends that this suit as presently constituted has similar facts, claims as in the Suit No: NICN/AWK/07/2017. To the defendant, this being the case, this suit ought to be struck out for being a multiplicity of suit and abuse of court’s process. The claimant in reaction to the defendant’s notice of preliminary objection submitted that this suit is not the same thing with Suit No: NICN/AWK/07/2017 and urged the court to strike out the defendant’s application.

 

 In deciding what amounts to multiplicity of suits, a recourse has to be made to decided authorities. In Chief Victor Umeh &  anor v. Professor Maurice Iwu & 3 ors (2008)LPELR-3363 (SC) the Supreme Court, per Onnoghen, JSC (as he then was, later CJN) held that:

"It is settled law that for there to be an abuse of court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which preconditions are mutually inclusive as they are conjunctive. In the case of Saraki v.  Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 - 189, this court held inter alia that "the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues... The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice."

 

Generally abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject-matter and on the same issues. See Ogoejeofo v. Ogoejeofo (supra) and Okafor v. Attorney-General of Anambra State (supra). The bottom-line of these authorities in regard to abuse is that to institute an action during the pendency of another suit claiming the same relief is an abuse of court process and the only course open to the court is put an end to the suit. See Aruko v. Aiyeleru (supra). It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. Abuse of court process therefore simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using court process as obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice. See Chief Victor Umeh &  anor v. Professor Maurice Iwu & 3 ors (supra)  

 

Therefore, it is very instructive to note that from the above decided authorities; to sustain a charge of abuse of process as in the instant suit there must coexist inter alia: 1. A multiplicity of suits; 2. Between the same opponents; 3.On the same subject matter; and  4.On the same issues. In deciding the instant case in light of the above decided judicial principles; it is pertinent to compare the claims of the claimant in Suit No: NICN/AWK/07/2017 and Suit No: NICN/AWK/31/2018. The claimant in  Suit No: NICN/AWK/07/2017 claimed against the three defendants as follows: 1. A Declaration that an engagement by the Claimant to revalidate his practice  licence in the UK during vacation is not a secondary employment; 2. A Perpetual Injunction restraining the Defendants from terminating the appointment of the Claimant without due process and fair hearing; 3. A Claim of N200,000,000.00 (Two Hundred Million Naira) from the Defendants being special and general damages for the panic, harassment and embarrasment suffered by the Claimant and which he is still suffering till now.  And for such further or other orders as this Honourable Court may deem fit to make in the circumstances. While in Suit No: NICN/AWK/31/2018 claimed against the defendant as follows:

The sum of N1, 500,000,000.00 (One Billion, Five Hundred Million Naira) as compensatory damages for the risk on the air, land and on the high sea.

The sum of 300,000,000.00 (Three Hundred Million Naira0 as special and general damages for the suffering, humiliation and embarrassment occasioned by the act of the defendant.

 

A critical examination of the two suits shows that Mr. Michael Onyebuchi Ugboaja who is claimant in the two suits is one and the same person in Suit No. NICN/AWK/07/2017 and in Suit No. NICN/AWK/31/2018. The 3 defendants in Suit No. NICN/AWK/07/2017 are: 1. Total E & P Nigeria Limited, 2. Nicolas Terraz; Managing Director/Chief Executive of Total E & P Nigeria Limited and 3. Paul Odekina, Executive General Manager, Human Resources, Total E & P Nigeria Limited; while in Suit No. NICN/AWK/31/2018, Total E & P Nigeria Limited is the only defendant. The subject matter (complaint) is substantially the same in both suits. However, the reliefs sought by the claimant in Suit No. NICN/AWK/07/2017 can be classified as declaratory and injunctive reliefs; and damages (special and general damages); while the reliefs sought by claimant in Suit No. NICN/AWK/31/2018 are strictly general and special damages; and nothing more.

 

The law is that abuse of court process in regard  to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject-matter but also in respect of the same issues in the other action or actions. See Ikine v. Edjerode (2001) LPELR-1479 (SC); Okafor v. A.G Anambra State (1991) 6 NWLR (pt 200) 659 at 681 and Saraki v. Kotoye (1992) 9 NWLR (pt 264) 156. It cannot amount to abuse of court process if what is done was that the plaintiff filed another action in order to substitute it for the one already pending. He may decide to do this instead of seeking an amendment of the earlier suit. See Ikine v. Edjerode (supra). An allegation of abuse of court process by multiplicity of suits will fail if the suits in question do not have similar parties, subject matter and issues. These three similarities must co-exist for such an allegation to be sustained. See Ajali & anor v. Okuri-Eze & ors (2013) LPELR-22492 (CA). So that if one of the three elements does not exist the allegation must fail. See Umeh v. Iwu (supra) and Gbadamosi & anor v. Biala & ors (2014) LPELR-24389 (CA).

 

When is there said to be a multiplicity of actions; and what is a court required to do when faced with an issue of multiple actions constituting an abuse of process? By Chambers 21st Century Dictionary, Chambers Harrap Publishers Ltd, 1999 at page 899, the word “multiplicity” is defined as: “a great (large) number and variety; the state of being many and various”. In Ajali v. Okuri-Eze & ors (supra), the Court of Appeal, per Agim, JCA, held thus: “It is beyond argument that the determination of an allegation of abuse of process by multiplicity of suits must start with a consideration of whether the suits are similar in terms of parties, subject matter and issues. Where the parties, subject matter and issues in the pending multiple suits are similar, the machinery of the court is said to be abused in the sense that it has been put to a use other than the attainment of justice. The multiplicity of the same case against the same party over the same subject matter and issues no doubt increases his financial expenditure and takes more of his time and attention and deprives him of other useful engagements. This is a very high opportunity cost that is clearly reasonably foreseeable as likely to result from the multiplicity of suits. The law which presumes that every person is reasonable will treat him as having intended such adverse consequences on his opponent and therefore regard such employment of the court machinery as lacking in bona fide as it has the obvious effect of irritating, diminishing or oppressing the other party. This is the philosophy underlying the almost unanimous view that such multiplicity of similar suits against the same party constitutes an abuse of court processes”. See Messrs NV Scheep & anor v. The MV “S. Araz” & ors  (2000) 12 SC (pt I) 164;  (2000) LPELR-1866 (SC); Wanzami v. & anor v. Salisu & ors (2014) LPELR-2233 (CA); Unity Bank Plc v. Olatunji (2013) 15 NWLR (pt 1373) 503 at 534 and Ladoja v. Ajimobi & ors (2016) LPELR-40658 (SC).

 

In Issue One, the defendant’s application prays for an order of court striking out this suit in its entirety for being an abuse of court process arising from multiplicity of suits. To the defendant,  a cursory look at the claimant’s statement of claim and documents he intents to rely upon  reveals that this suit amounts to a multiplicity of suits as it is an exact replication of the claimant’s action in Suit No. NICN/AWK/07/2017 filed and dated 9th March, 2017 and pending before this court. Firstly, could it be said that claimant’s action in Suit No. NICN/AWK/31/2018 filed and dated 18th October, 2018 after filing Suit No. NICN/AWK/07/2017 tantamounts to multiplicity of suits? By the Chambers 21st Century Dictionary definition of ‘multiplicity’, that is: ‘a great or large number and variety;  and state of being many and varied’; and by the authorities cited; I think not; and I so find and hold. Secondly, has the defendant proved that Suit No. NICN/AWK/31/2018 is an exact replication of Suit No. NICN/AWK/07/2017? By Ajali v. Okuri-Eze & ors (supra), an allegation of abuse of court process by multiplicity of suits can only be established if the suits in question have similar parties, subject matter and issues. As I stated earlier, the claimant in Suit No. NICN/AWK/07/2017 and NICN/AWK/31/2018 is one and the same person. However, there are three defendants in Suit No. NICN/AWK/07/2017 and one defendant in Suit No. NICN/AWK/31/2018; with the 1st defendant in Suit No. NICN/AWK/07/2017 being the sole defendant in Suit No. NICN/AWK/31/2018. In terms of issues or reliefs claimed, while Suit No. NICN/AWK/07/2017 seeks three reliefs, to wit: a declaratory relief, an injunctive relief and consolidated special and general damages, Suit No. NICN/AWK/31/2018 is strictly for two heads of damages, namely, compensatory damages, and consolidated special and general damages. Therefore, in my respectful view, the defendant has not proved that the two suits filed by the claimant tantamounts to multiplicity of suits; or that there is similarities of the parties, subject matter and issues in Suit No. NICN/AWK/07/2017 and Suit No. NICN/AWK/31/2018; and I so find and hold.

 

On Issue Two, whether this Honourable Court has jurisdiction to entertain this suit in view of the fact that issuance and service of the writ of summons/complaint in this suit violates the provisions of Section 96 (2) and 97 of the Sheriffs and Civil Processes Act, Cap S6, Laws of the Federation of Nigeria, 2004, it is my candid view that the power reposed in a Judge to distinguish and differ from the decision of a superior court is a recognition of the varying nature of the facts to which the same law is applicable. See Agbaeze & anor v. Customary Court Item District & ors (2006) LPELR-7684 (CA). In the Ruling of this Honourable Court delivered on July 10, 2018 in Suit No. NICN/AWK/07/2017 between Mr. Michael Onyebuchi Ugboaja v. Total E & P Nigeria Limited & 2 ors,  it was held thus:

On the nature of the Sheriffs and Civil Process Act and the scope of its application, the Court of Appeal in the case of Wari & Ors v. Mobil Inc. of America & Anor (2013) LPELR-21996 (CA) stated that:

"The Sheriffs and Civil Process Act is an Act of the National Assembly providing for the service of a writ of summons outside jurisdiction of a High Court sitting in a State or the High Court of the Federal Capital Territory, that have demarcated territorial boundaries mentioned and clearly defined in the first schedule; parts 1 and 11 respectively of the 1999 Constitution.  All the cases cited earlier and more on the application of the Sheriffs and Civil Process Act were either from the State High Courts or the High Court of the Federal Capital Territory to which the Act undoubtedly apply from the position of the Supreme Court.  These Courts were specifically established by the provisions of Section 270 of the Constitution and to which reference was made in the Sheriffs and Civil Process Act for application." Per GARBA, J.C.A. (pp.50-51, paras. G-D)

 

Service of processes on a Defendant outside the jurisdiction of a State High Court but within the Nigerian Federation is governed by the provisions of Sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act.  The authority for service of a writ of summons out of jurisdiction of a Court, but within the Country, is Section 96 of the Sheriffs and Civil Process Act. 

It reads:

96 (1):  A writ of summons issued out of or requiring the Defendant to appear   at any Court of a State or the Federal Capital Territory may be served on the Defendant in any other State or the Federal Capital Territory.

 

96 (2):  Such service may, subject to any Rules of Court which may be made  under this Act, be effected in the same manner as if the writ was served  on the Defendant in the State or the Federal Capital Territory in which the writ was issued…

Sections 97 and 99 require that such writ of summons issued for service outside jurisdiction must carry on its face an endorsement stating the State in which it was issued and the State it is to be served in and it must also state the time within which the Defendant may enter appearance to be thirty days.  It is by the provisions of Section 96 of the Sheriffs and Civil Process Act that the High Court of a State exercises jurisdiction over Defendants outside the territory of the State and once the writ of summons is duly issued and served on such a Defendant, the Court will exercise jurisdiction over him as if he was served within the territory of State.  See the case of Owners of the MV "Arabella" v. Nigeria Agricultural Insurance Corporation. (2002) 15 NWLR (pt. 791) 570 at 585 E-G. per ABIRU, J.C.A. (pp.36-37, paras.E-F).

 

As to whether the provisions of the Sheriffs and Civil Process Act are applicable to the Federal High Court, the Court of Appeal in the case of Olly  v. Tunji & Ors (2012) LPELR-7911 (CA) held that:

"The Supreme Court also held that the provisions of the Sheriffs and Civil Process Act are applicable to the Federal High Court in spite of the nation-wide coverage of the territorial jurisdiction of the Federal High Court." per OGUNWUMIJU, J.C.A. (pp. 25-26, paras. E-B). 

In the case of The Owners of the MV "MSC AGATA" & Anor v. Nestle Nigeria Plc & Anor (2012) LPELR-9851 (CA), the Court of Appeal stated that:

"Section 2 of the Sheriffs and Civil Process Act provides that the word "Court" is defined in that Act to include a High Court and a Magistrate Court and that since the Federal High Court is a High Court, the provisions of the Act are applicable to it.  I am of the firm view that in so far as services of processes outside jurisdiction are concerned, the Act is the applicable legislation and any service that does not comply with the provisions of the Act shall be invalid."  per OGUNWUMIJU, J.C.A. (P. 29, paras. A-F).

It is clear and evident from the above narrative that the Sheriffs and Civil Process Act, an Act of the National Assembly,  applies to Courts specifically established by the provisions of Section 270 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, for each of the States of the Federation and Section 255 for the Federal Capital Territory which all have territorial boundaries in the Constitution and to which reference was made in the Sheriffs and Civil Process Act for application.  As stated above, Section 2 of the Sheriffs and Civil Process Act defines the word "Court" to include a High Court and a Magistrate Court and the Supreme Court interpreted High Court to include Federal High Court (established under Section 249 of the Constitution of Federal Republic of Nigeria, 1999 (as amended).

 

In none of these Constitutional provisions for the Courts contemplated by the Sheriffs and Civil Process Act or the decisions of the Supreme Court or Court of Appeal cited on the Act was the National Industrial Court of Nigeria which is distinctly established under Section 254A (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended by the 3rd Alteration Act, 2010, mentioned, included, or implied.  

 

In interpreting a statute, the meaning and intention of the legislation must be collected from the plain and unambiguous expressions therein.  The law as I know it is that the express mention of a thing in a statute means an intention to exclude what is not so mentioned and it is a known rule of interpretation to exclude what is not stated in the statute or constitution.  See Awoye v. Obasanjo (2006) All FWLR (pt.334) 1967 at 1979; INEC v. Nyako & Ors (2011) LPELR-4314 (CA), Olatubosun v. Oluyole Local Govt & Anor (2010) LPELR-4753 (CA).

 

Having examined the relevant provisions of the Sheriffs and Civil Process Act on service of process in the relevant Courts, I shall now proceed to look at the issue of whether the service of the writ of summons on the 1st and 2nd  Defendants is bad in law. For this, it is imperative to look at the Rules of the National Industrial Court which regulate the practice and procedure in the Court in its entirety .It is a well settled doctrine that the Rules governing the procedure and practice of the Courts which were made by the respective Heads of Court pursuant to the powers conferred thereupon by the 1999 Constitution, form part and parcel of the Constitution.... it may not be out of place to add that such procedural rules have the same force of law as the Constitution itself.  See the case of Dimegwu v. Ogunewe & Ors (2008) LPELR-4039 (CA).

 

For the National Industrial Court of Nigeria, Section 254F (1) of the Constitution of the Federal Republic of Nigeria provides that:

Subject to the provisions of any Act of the National Assembly, the President of the National Industrial Court may make rules for regulating the practice and procedure of the National Industrial Court. 

It is in the exercise of the powers conferred upon the President of the National Industrial Court by Section 254F (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by the Third Alteration Act, 2010) and Section 36 of the National Industrial Court Act, 2006 and all other powers enabling him in that behalf that the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 were made.  The Rules took effect on the 5th day of January, 2017.  The new Rules revoked the National Industrial Court Rules, 2007 and Practice Direction, 2012 made pursuant to the powers conferred on the President of the Court under Section 36 of the National Industrial Court Act, 2006.

 

It is trite that Rules of Court and indeed statutory provisions regulating the commencement of an action must be obeyed.  Rules of Court are part of the machinery of justice evoked by the Courts to regulate their proceedings.  They have the same force of law as subsidiary legislations.  In the case of MV "Arabella" v. Nigeria Agricultural Insurance Corporation (supra) the Supreme Court held that obedience to Rules for service is crucial to the prosecution of an action in Court.

 

Section 21(1) of the National Industrial Court Act, 2006 provides that:

"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 and may, designate any such Judicial Divisions or part thereof by such name as he thinks fit."

The National Industrial Court Act, 2006 is an Act of the National Assembly.

Order 7 Rule 15 (1) and (2) of the Court's Rules 2017 state as follows:

15 (1)  The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria; and is only divided by the President of the Court into Judicial Divisions or Registries for adjudicatory or administrative convenience.

(2)  All Originating processes or other Court Processes filed by any party before the Court shall be served on any other party in any part of the Federation without leave of Court.

These provisions of the Rules are made so based on the need to create a system for speedy dispensation of justice, discourage unwarranted or frivolous adjournments occasioned by Counsel and fast track proceedings in the Court, and in particular the hearing and determination of interlocutory applications, motions and notices.  See Order 1 Rules 4 and 5 of the Rules, 2017.  The Rules are made in line with the Judicial Information Technology Policy of the Judiciary to deploy cutting edge technology to enhance justice administration and provide Nigerians with the transparent, fast and accessible justice system they deserve, for instance, by using the email to serve lawyers, and enhance communication between the Judges, Court Staff and lawyers, as well as between lawyers inter se, and provide a seamless exchange of information electronically within the Judicial ecosystem. 

 

In view of the clear provisions of  the  Rules of  the National Industrial Court stated above, the aim and objectives of the Court's Rules and the need to maintain consistency and certainty , it is axiomatic that concurrence with the Sheriffs and Civil Process Act or deference to same on the service of processes cannot be operationally practicable .  The law on it is and remains as stated exclusively in the NICN Rules, 2017.  I so hold.  I resolve Issue Two in favour of the Claimant.  On whether the service of the writ of summons on the Defendant is bad in law, the answer is "No."  The service of processes on Defendant conformed with Order 7 Rule 15 (1) and (2) of NICN Rules 2017.  It is not defective.  It is not incompetent.  The processes are properly before the Court; and the Court is competent to treat the processes.  I so find and hold.

 

The point to note in Izeze v. INEC (supra) is that under section 97 of the Sheriffs and Civil Processes Act, if an originating process for service out of jurisdiction vide Order 6 rules 13-17 of the Federal High Court (Civil Procedure) Rules does not have the requisite endorsement, such an originating process is invalid. Even at that, the decision cited by counsel to the defendant was given per incuriam because sections  9, 19 and 44 of the Federal High Court Act and sections 252 and 254 of the 1999 Constitution were not considered in that case. Again, the decision of the Supreme Court in  Owners of MV “Arabella” v. Nigeria Agric. Insurance Corporation (supra) that section 97 of the Sheriffs and Civil Process Act is mandatory for originating processes for service out of jurisdiction was taken based on the 1976 Rules of the Federal High Court. See Akeredolu v. Abraham (2018) LPELR-44067 (SC) on the law as settled with respect to service of processes in the Federal High Court today. The service of all processes under the civil procedure rules of the National Industrial Court of Nigeria, as stated above, are made pursuant to section 254F (1) of the 1999 Constitution, which is the grundnorm, and pursuant to section 36 of the National Industrial Court (NIC) Act, 2006, which is  an Act of the Natioanl Assembly. By Order 8 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, service of originating processes out of jurisdiction is service outside the Federal Republic of Nigeria. This court, having one jurisdiction throughout the Federal Republic of Nigeria, has expressly provided in Order 7 Rule 15 (2) that all originating processes or other court processes filed by any party before the court shall be served on any other party in any part of the Federation without leave of court. 

 

On the whole, I find no merit in the defendant’s application. It is totally misconceived and a waste of judicial time. The application is accordingly dismissed.

 

Ruling is entered accordingly. I make no order as to costs.

 

 

Hon. Justice John I. Targema, Ph.D

Judge