There is currently a legal logjam as to whether the Sheriffs and Civil Process Act, specifically Section 97, applies to a writ issued by the National Industrial Court of Nigeria.
As of today, the National Industrial Court of Nigeria, which was created pursuant to the Constitution of the Federal Republic of Nigeria (Third Alteration Act, 2015), has about 15 divisions in about 15 states of the federation.
The National Industrial Court of Nigeria 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 National Industrial Court of Nigeria is listed as No. 4, immediately after the Federal High Court, in amended Section 6.
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 National Industrial Court of Nigeria has the character, attributes and obligations of the Federal High Court, including its exclusive jurisdiction, as prescribed by Section 254.
This intervention is against the background of the case of an appellant, who was a plaintiff at the Federal High Court in Lagos in 1996 and took out a writ of summons against some 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 Sheriffs and Civil Process Act.
The argument and contention was that since the plaintiff had failed and neglected to endorse on the writ of summons the prescribed statutory endorsement in compliance with Section 97 of the Sheriffs and Civil Process Act, the writ was invalid.
Honourable Justice Roseline Ukeje, (as she then was), a master legal draftsman of international repute, considered the arguments and in conclusion set aside the said writ, holding that its service did not comply with the Sheriffs and Civil Process 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; and 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, it was not affected or bound by the provisions of Section 97 of the Sheriffs and Civil Process Act.
It was argued that the status of the court, not its geographical location, determines the applicability of the Act.
I submit, respectfully, that as opposed to the isolated interpretation of the word ‘court’ by the learned Justice of the Court of Appeal, the correct interpretation should be that the National Industrial Court is a count bound by all Acts of the National Assembly, insofar 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 Sheriffs and Civil Process Act by the honourable 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, judgments, decrees and other decisions of the court of law, including National Industrial Court.
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 Sheriffs and Civil Process Act 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 powers and made applicable to all courts established under the Constitution, with respect to service of processes issued in one state of the federation or the Federal Capital Territory High Court, for service in another state.
The National Industrial Court of Nigeria is a court of coordinate jurisdiction with the Federal High Court, High Court of the Federal Capital Territory and state high courts. The National Industrial Court 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 judgment, which dwelt on the dichotomy of the former and the latter 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 the commencement date of June 1, 1945. No one would have thought in 1945 that there would be a Federal High Court, the National Industrial Court of Nigeria or the Federal Capital Territory 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 the 1945 Laws of the Federation.
The National Industrial Court 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. The provision of the National Industrial Court (Civil Procedure) Rules is a subsidiary legislation and cannot be substituted for or override an Act of the National Assembly. The compliance with the Rules of the court without the Act of the National Assembly would not save the process and service of the court process that violates the Act of the National Assembly from being invalid, null and void.
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 National Industrial Court. This judgment of the Court of Appeal is bound to apply and be followed by the Justices of the National Industrial Court of Nigeria until it is reviewed.
Awomolo, a Senior Advocate of Nigeria, wrote from Abuja