Applicability of Sections 96, 97 & 98 Sheriffs and Civil Process Act in the National Industrial Court
though served outside the State of issuance.
In this case, the Claimant caused to be issued, a writ of summons at the Abuja division of the NICN, and the service was to be served in Kaduna State. The Defendant challenged the validity of the issuance of the originating writ of summons served on them in Kaduna without the statutory endorsement, and the objection was overruled by the court. An appeal was filed at the Court of Appeal, Abuja. The Court of Appeal affirmed the decision of the NICN.
For the avoidance of error or misquotation, I would like to quote in extenso the very brilliant conclusion of the Hon. Justice Emmanuel Akomaye Agim, Hon. Justice of the Court of Appeal, who wrote the lead judgement. He stated in these words:
“I agree with the argument of Learned Counsel for the Cross Respondent, that the National Industrial Court of Nigeria is not bound by Sections 95, 96, 97 and 99 of the Sheriffs and Civil Process Act. This is because Section 19(1) of the Act defines court thusly- "Court includes the High Court of the Federal Capital Territory Abuja or of the State". This definition qualifies the wide definition in Section 2 of the same Act as including "a High Court and a Magistrates Court". Being a later provision in the Act, it overrides Section 2 which is an earlier provision, as it is a trite rule of statutory interpretation that, later provisions in a statute override earlier ones in that statute on the same subject-matter, and that special provisions override general provisions, especially where they conflict. Another reason is that, while the definition in Section 2 applies generally to the Act, Section 19 limits the application of the definitions therein to parts III, IV, V, and VI of the Act. The exact text of Section 19(1) opens with these words - "in this part and parts IV, V and VI... A further reason is that, Section 2, by subjecting its definition of the words therein to the context in which they are used, made its definition of court subject to the definition of court by Section 19(1) specifically in the context of parts III, IV, VI and VI of the Act. So, the court to which parts III, IV, V and VI relates are the High Court of a State or of the Federal Capital Territory Abuja. Although, Sections 95, 96, 97 and 99 are not in the said parts III, IV, V and VI of the Act, but are in part VII of the Act, Section 95 of the Act defines a court as "a court to which parts III, IV, V and VI of the Act apply", which is defined in Section 19(1) as the High Court of the Federal Capital Territory Abuja or of the State.
Again, the heading of part VII, though not part of its text, indicates that it provides for "service of the process and enforcement of the judgement of the courts of the Federal Capital Territory, Abuja and the States throughout Nigeria".
It is clear also from the tenor of the provisions of Section 96 of the said Sheriffs and Civil Process Act, that the legislative intention is that part VII like parts III, IV, V and VI before it, should apply only to the High Court of the Federal Capital Territory or of a State.
Section 96 of the said Act, refers specifically to a writ Summons issued out of or requiring the defendant to appear at any court of a State or the Capital Territory. It did not say any court in a State. So, the Act contemplates an originating process issued out of or requiring a defendant to appear at "any court of a State or the Capital Territory. "Court of" means the court belonging to that State or Capital Territory. If that section had used the phrase "Court in" a State or the Capital Territory, then it would have included Federal Courts located in that State or Capital Territory.
The National Industrial Court is not listed in Section 19(1) as part of its meaning of a court, and is therefore, not a court to which parts III, IV, V and VI of the Act applies. Since it is not a court to which parts III, IV, V and VI of the Act apply, it is not a court to which part VII of the Act applies by virtue of the express provisions of Section 95 that court means "a court to which parts III, IV, V and VI apply". The general rule of interpretation that the use of the word 'include' to define a word, makes the word defined to be inclusive of the things not expressly listed therein cannot be invoked to interpret Section 19(1) of the Sheriffs and Civil Process Act to include the National Industrial Court, because it is very clear on what it regards as a Court and so does not require any interpretation to find out if it has any other meaning beyond what it has clearly expressed. Also the provisions of Section 95 of the same Act and the of the Act would not accommodate such interpretation. Therefore Sections 95, 96, 97 and 99 cannot apply to it.
Since the National Industrial Court is not a court to which part VII applies, the issuance and service of its processes do not need to comply with the provisions in part VII of the Act which includes Sections 97 and 99 therein. The Originating Summons that commenced the suit in the trial court, was issued and served in accordance with Order 3 Rule 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The Cross Appellant did not complain that the suit was not commenced in compliance with the National Industrial Court of Nigeria (Civil Procedure) Rules.”
The NICN is a superior court of record, by virtue of the Constitution of the Federal Republic of Nigeria (Third Alteration Act) 2010. The Alteration Act amended Sections 6, 84, 240, 243, 254A-F, 287, 289, 292, 294, 295, 316 and 318 of the Constitution of the Federal Republic of Nigeria 1999 and its 3rd and 7th Schedule.
The NICN is listed as No. 4, immediately after the Federal High Court in amended Section 6.
Section 254D states:
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by any Act of the National Assembly, the National Industrial Court shall have all the powers of a High Court”. Section 254F further provides:
“Subject to the provision 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”.
Sections 287(3), 289, 292 and 294 of the Constitution had inserted, after the words “Federal High Court”, the words “National Industrial Court”.
It is our submission that, by coming immediately after the Federal High Court, the NICN has the character, attributes and obligations of the Federal High Court including its exclusive jurisdiction, as prescribed by Section 254.
I submit respectfully, that, the learned Justice of the Court of Appeal instead of interpreting the word ‘court’ in isolation, the correct interpretation should be that the NICN is a court bound by all Acts of the National Assembly, in so far as they may relate to practice, procedures including service of writ of summons issued in one State of the Federation for service in another State, in the same way as the Federal High Court, operates divisions in all the States of the Federation, including the Federal Capital Territory, Abuja.
With respect, the interpretation given to Sections 2 and 19 of the SCPA by the Hon. Justices of the Court of Appeal, is rather too narrow, and indeed, defeated the purpose of the enactment of the Act which regulates the service of all civil processes, issued in one State for service in another State, in which it was issued.
It is important to note that item 57, on the Exclusive Legislative List of the Constitution, relates to service and execution in a State of Civil and Criminal processes, Judgements, Decrees and other decisions of the Court of law, including NICN, even though established several years after the Constitution, being a court of law in Nigeria, other than a Court of law established by the House of Assembly.
It is my view that, attention be given to the provision of Section 315 of the Constitution, which provides that existing laws shall have effect with such modification, as may be necessary to bring them into conformity with the provision of the Constitution. Such modifications include, interpretation of an Act of the National Assembly, to the extent that it is a legislative item with respect to which the National Assembly, is empowered by the Constitution to make law.
I respectfully, submit that, the law is settled that, in order to discover the intention of the Parliament, parts III, IV, V, VI and VII of the SCPA should be read together, in conformity with the provisions of the Constitution, because the Act was enacted by the National Assembly pursuant to its exclusive legislative power and made applicable to all courts established under the Constitution, with respect to service of processes issued in one State of the Federation or Federal Capital Territory High Court and for service in another State. The NICN is a court of coordinate jurisdiction with the Federal High Court, High Court of the Federal Capital Territory and State High Courts, and is not by its specialised nature, superior to other courts, neither is it above compliance with the Act of National Assembly for the time being in force.
The emphasis of the Court of Appeal in the judgement, which dwelt on the dichotomy of “former and later provisions of the Act” or the idea of “special and general provision of the Act”, defeats the purpose of the law. The Act was enacted with commencement date of 1st June, 1945. No one, would have thought in 1945 that there would be a Federal High Court, National Industrial Court of Nigeria or Federal Capital Territory Abuja, High Court.
The provisions of Sections 4 and 315 of the Constitution of Federal Republic of Nigeria 1999, obliterate any ambiguity arising from a narrow definition of the law made in 1945 Laws of the Federation.
The “High Court” defined in Sections 2, 19 and 95 of the Act is not restrictive, but includes all courts operating within a geographical area, called a State in Nigeria even though as in several or every State of the Federation.
The NICN is a High Court to which part VII applies, because the concern of the Part, is the issuance and service of court processes in any State of the Federation or the Federal Capital Territory apply. The provision of the National Industrial Court (Civil Procedure) Rules, is a subsidiary legislation and cannot be a substituted for or override an Act of the National Assembly. The compliance with
the Rules of the court without the Act of National Assembly, would not save the process and service of the court process that violates the Act of the National Assembly, is invalid, null and void.
The Supreme Court in EZEZE v INEC supra had this to say
“The Sheriffs and Civil process Act is an act of the National Assembly, while the Federal High Court (Civil Procedure) Rules is a subsidiary legislation, a Bye law, inferior to an Act of the National Assembly.
A diligent examination of Order 6 Rule 13-17 of the Federal High Court (Civil Procedure) Rules, reveals that the requirement that the Originating Process for service out of Jurisdiction must be endorsed as provided in Section 97 of the Sheriff and Civil Process Act, is not part of the said Rules.
In the instant case, the Court of Appeal was wrong to restrict itself of to whether the originating process was properly issued and served on the 1st and 2nd Respondents. Oblivious of superior legislation, to wit the mandatory requirement of compliance with Section 97 of the Sheriff and Civil Process Act , which was not even addressed by the court”.
The provisions of the SCPA bind all the originating processes, issued by the NICN, being a court established under the Constitution as a superior court of record, immediately after the Federal High Court. Whatever affects the processes issued by the Federal High Court, are applicable to the National Industrial Court mutalis mitandi.
Unfortunately, the Court of Appeal, by reason of Section 243(4) of the Constitution, is the final Court in appeals emanating from decisions of the NICN. This judgement of the Court of Appeal, is bound to apply and be followed by the Justices of the NICN, until it is reviewed.
“THE PROVISIONS OF THE SCPA BIND ALL THE ORIGINATING PROCESSES, ISSUED BY THE NICN, BEING A COURT ESTABLISHED UNDER THE CONSTITUTION AS A SUPERIOR COURT OF RECORD....WHATEVER AFFECTS THE PROCESSES ISSUED BY THE FEDERAL HIGH COURT, ARE APPLICABLE TO THE NATIONAL INDUSTRIAL COURT MUTALIS MITANDI”
Learned Senior Advocate, Asiwaju Adegboyega Awomolo, thoroughly examines the provisions of Sections 96-98 of the Sheriffs and Civil Process Act 2004, and also with the aid of judicial precedent, concludes that those provisions are applicable to the National Industrial Court of Nigeria, as they are to the Federal High Court, High Court of the Federal Capital Territory, Abuja, and State High Courts
The National Assembly enacted the Sheriffs and Civil Process Act 2004 (SCPA), and made provisions for appointment of Sheriffs, the enforcement of judgements and orders, and the service and execution of civil processes of the courts throughout Nigeria. Indeed, Section 4(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)(the Constitution) provides that the National Assembly shall have powers to make laws for the peace, order and good government of the Federation, with respect to any matter included in the Exclusive legislative list, save as otherwise provided in the Constitution to the exclusion of the House of Assembly of States.
Item 57, under the Exclusive Legislative List, in the Second Schedule, of the Constitu
tion provides for “service and execution in a State of the civil and criminal processes judgement, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria other than a court of law established by the House of Assembly of that State”, as an item upon which the National Assembly can exercise legislative powers.
The National Assembly is deemed to have exercised the legislative powers in the enactment of the SCPA, being a Federal Law enacted in 1945.
Section 97 of the SCPA, provides as follows: Endorsement on writ for service outside a State.
“Every Writ of Summons for service under this part out of the State or the Capital Territory in which it was issued shall, on 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)”.
There were in the past, arguments as to whether or not of the application of this law is in all the superior courts of record all over the Federal Republic of Nigeria, even though there was unanimity that every Act of the National Assembly applies and is effective throughout the Federal Republic of Nigeria.
The provisions of this law have been given judicial interpretation by the Supreme Court in Nigeria, which is the apex court, as one applicable in all superior courts of record, that is, the court established under the Constitution.
Respectfully, I submit that neither the law nor the Supreme Court, created exceptions to the law. All that an objector is required to prove, is that the originating writ of summons was issued by the Claimant(s) in a State of the Federation or the High Court of the Federal Capital Territory, Abuja, for service on the Defendant(s) in another State of the Federation. The key words in my view are “out of the State or the Capital Territory in which it was issued and the ... State.”
Under the Principle of Stare decisis, all courts inferior to the Supreme Court are bound by the decisions of the Supreme Court, and must be given effect as may be relevant to the facts and the law in issue.
Locus Classicus
The locus classicus on the interpretation of
the Act, is the decision of the Supreme Court
in OWNERS OF THE MV ARABELLA v NIGERIAN AGRICULTURAL INSURANCE CORPORATION reported in (2008)
11 NWLR (Pt. 1087) 182.
The relevant facts are that, the Appellant who was the Plaintiff at the Federal High Court in Lagos, in 1996, took out writ of summons against Defendants who were served at Plot 452 Tafawa Belawa Way, Area 3, Garki – Federal Capital Territory, Abuja. The writ was not endorsed with the Statutory requirement, under Section 97 of the Act.
The argument and contention was that, the Plaintiff having failed and neglected to endorse on the writ of summons the prescribed statutory endorsement, in compliance with Section 97 of the SCPA, the writ was invalid. Hon. Justice Rosaline Ukeje, (as she then was), considered the arguments and in conclusion set aside the said writ and its service for non- compliance with the Act, and proceeded to dismiss the suit.
The appeal against the decision went to the Court of Appeal, Lagos, which affirmed the decision of the Federal High Court, Lagos. The Applicant went on further appeal, to the Supreme Court. The core argument before the Supreme Court was that, the Federal High Court was a single court, even though with several divisions, in several States of the Federation, and, therefore, not being a “State High Court”, was not affected or bound by the provisions of Section 97 of the SCPA. It was argued that, the status of the court, not its geographical location, determines the applicability of the Act.
The Supreme Court, noted the mandatory nature of the provisions of Section 97 of the Act, as applicable in all courts of the Federation, which makes it compelling that the statutory endorsement must be stated on the writ, ‘for service outside the State of issue’. The court affirmed the decision of Achike JCA (as he then was and of blessed memory) in the case of
BELLO v NATIONAL BANK
OF NIGERIA LTD. (1992) 6 NWLR (Pt. 246) 206 @ 217 – 218 where the late Jurist stated the law in these words:
“It is clear that the provision of Section 97 of the Sheriffs and Civil Process Act, are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under Section 97, is not a mere irregularity, but is a
fundamental defect, that renders the writ incompetent”.
The Supreme Court in affirming the decisions of the Federal High Court and the Court of Appeal, the Hon. Justice Ogbuagu, JSC (of blessed memory) spoke the mind of the court in these words:
“By virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the State in which it was issued must, in addition to any endorsement of notice required by law of such State, have endorsed thereon a notice indicating that the Summons is to be served out of the State and in which State it is to be served. Failure to endorse the required notice on a writ of summons for service outside of a State where it was issued, is not mere irregularity but a fundamental defect that renders the writ incompetent, and goes to the root of the jurisdiction and affects the competence of the court.”
The Supreme Court, in its wisdom, considered the question whether the provision of Section 97 of the SCPA applies to the Federal High Court, considering Section 19(1) of the Act which interprets the court “to include a High Court and a Magistrate Court”.
The court concluded that, the provision of Section 97 of the Act is applicable in all High Courts, including the Federal High Court, and that the provision has nothing to do with the coverage of the jurisdiction of the Federal High Court, which is nationwide.
The Supreme Court’s decision has become sacrosanct throughout the Federation, and in the most recent decision, in the case of
REUBEN IZEZE v INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(2018) 11 NWLR (Pt. 1629) 110, the Supreme Court again affirmed the applicability of the provision of Section 97 to every originating writ, issued by the Federal High Court in any division of the court. In this case, the Federal High Court, Warri Division, issued a writ of summons for service in Abuja, outside Delta State. The Supreme Court held that, Summons issued by the Federal High Court Warri, Delta State, endorsed for service in Abuja, Federal Capital Territory, without the statutory endorsement, was fundamentally and incurably defective, and could not be regularised.
National Industrial Court
However, there is currently a legal logjam as to whether the same SCPA, specifically Section 97, applies to writs issued by the National Industrial Court of Nigeria (NICN), established by the Constitution of the Federal Republic of Nigeria (Third Alteration Act 2015).
As at today, the NICN has about 15 divisions, in about 15 States of the Federation.
The Court of Appeal, Abuja Division in an unreported appeal No. CA/A/ 795/2015 between
MRS LUDMILA ANDREEVNA A. B. TUKUR v 1) KADUNA POLYTECHNIC, 2) THE REGISTRAR, KADUNA POLYTECHNIC, AND 3) GOVERNING COUNCIL, KADUNA POLYTECHNIC
delivered on 30th July 2018, concluded that the provisions of Sections 95, 96, 97 and 98 of the SCPA do not apply, affect or relevant in matters and causes filed in the NICN, even
“THE SUPREME COURT, NOTED THE MANDATORY NATURE OF THE PROVISIONS OF SECTION 97 OF THE ACT, AS APPLICABLE IN ALL COURTS OF THE FEDERATION, WHICH MAKES IT COMPELLING THAT THE STATUTORY ENDORSEMENT MUST BE STATED ON THE WRIT, ‘FOR SERVICE OUTSIDE THE STATE OF ISSUE’ ”