Is industrial court bound by Sheriffs and Civil Process Act?

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