IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON TUESDAY 10TH DAY OF APRIL 2018
BEFORE HIS LORDSHIP: HON. JUSTICE S. OLUYINKA ADENIYI
SUIT NO: NICN/ABJ/367/2015
BETWEEN:
ABDULGANIYU DAUDA
CLAIMANT
AND
- ATTORNEY GENERAL OF THE FEDERATION
- STATE SECURITY SERVICE
- DIRECTOR GENERAL, STATE SECURITY SERVICE
DEFENDANTS
This suit was commenced by an Originating Summons filed on the 26th day of November, 2015. The case was transferred from Court No. 1 to this Court in October 2017.
By the instant Motion Exparte filed on 6thApril, 2017, the Claimant is praying the Court for the reliefs set out as follows:
- AN ORDER for extension of time within which the Claimant/Applicant may apply to renew the Originating Summons filed in this Suit on 26th November, 2015, the life span of same, having expired when service is yet to be effected on the Defendants.
- AN ORDER renewing the Originating Summons filed in this Suit on 26th November, 2015, its lifespan having expired when service has not been effected on the Defendants.
The grounds upon which the application is predicated are:
- This Suit was filed on 26th November, 2015.
- Before service could be effected, the Defendants had set up a reconciliatory platform for the issues in dispute to be resolved.
- In order to ensure that the process of reconciliation is not disturbed, the Applicant refrained from effecting service of the Originating Summons.
- The lifespan of the Summons has expired and the reconciliatory overtures have failed.
- It is in the interest of justice that the Summons be renewed for the Applicant to properly seek redress from this Honourable Court.
- The Applicant is desirous of diligently prosecuting this Suit.
The Summons is supported by a 12 – paragraph Affidavit deposed to by one Dolapo Kehinde and a Written Address was filed alongside with it. Learned Claimant’s counsel formulated a sole issue for determination, that is:
“Whether in view of the circumstances of this case, the Applicant is entitled to the grant of the reliefs sought.”
The case was first mentioned by this Court on 28th November, 2017 and it was adjourned for further mention. In the meantime, the 2nd and 3rd Defendants filed a Notice of Preliminary Objection on 2nd February, 2018 wherein they prayed the Court for an order striking out the Claimant’s motion ex-parte for want of jurisdiction.
The application is premised on the following grounds:
- That the Claimant’s Motion Ex-parte for an Order renewing the Originating Summons is incompetent.
- That the Court lacks jurisdiction to entertain an incompetent Motion.
Learned counsel for the 2nd and 3rd Defendants, Moses Idakwo Esq., formulated a sole issue for determination of the Court in the Written Address which was filed with the Notice of Preliminary objection. The issue as formulated by learned counsel is:
“Whether or not the Claimant’s Motion Exparte dated and filed 6th April, 2017 is competent.“
In reaction to the Notice of Preliminary Objection, the Claimant’s counsel filed a Written Address on 5th February, 2018. The 2nd and 3rd Defendants’ Reply on Points of Law was filed on the 8th of February, 2018.
I had carefully considered the totality of the processes filed to support and oppose the instant applications which was argued on 13/02/2018. I had also taken cognizance of the totality of the written and oral arguments of learned counsel on both sides, to which I shall specifically make reference as I consider needful in the course of this Ruling.
As courts are enjoined to hear all preliminary objections before the hearing of the substantive applications or suits, it is appropriate to first consider the preliminary objection filed by the learned counsel for 2nd and 3rd Defendants.
The instant preliminary objection is praying for the striking out of the Claimant’s Exparte application on the grounds that the said application is incompetent and that the Court lacks jurisdiction to entertain same.
In consideration of the arguments canvassed by learned counsel on both sides, it is my view that the focal issue that calls for determination of this objection is:
“Whether the Notice of Preliminary Objection filed by the 2nd and 3rd Defendants, without the service of the Originating processes on the Defendants is not incompetent.”
It is pertinent to state, as a starting point that the Claimant is seeking for an order of Court to enable him renew the Originating Summons which had expired. This presupposes that service of the Originating Summons had not been effected on the Defendants.
In Guinness Nig. Plc V Ufot (2008) All FWLR Pt 412 Pg 1133, the Court of Appeal held that service of court process on a Defendant is the determining factor as to whether the Defendant is a party to the proceedings or not, and not the entering of appearance.
On the basis of the facts as gathered from the processes filed in this case, it is apparent that as at the time the Notice of Preliminary Objection was filed by the 2nd and 3rd Defendants, the power of this Court has not been activated by the non service of the Originating process on the Defendants. The 2nd and 3rd Defendants also did not file a memorandum of conditional appearance before filing the said objection.
Furthermore, it is an established principle of law, that where a party has an Exparte application before a court, only the applicant party is allowed to address the court. The other party need not be in court and even when in court can only be seen and not heard. In other words, even where the Defendants were in court when the Exparte application was being taken, they cannot be heard by the court. See 7UP Bottling Company V Abiola & Sons (1995) 3 NWLR Pt. 383 Pg. 275; Obaro V Hassan (2013) LPELR 20089
In N.A.A V Orjiakor (1998) 6 NWLR Pt. 553 Pg. 253 at 269, the Court held as follows:
“The Latin expresses “ex parte” means on one side only; by or for one party; done for, on behalf of or application ex parte, only the applicant is heard. An ex parte application has no respondent.
This principle of law is stated in Order 17 Rule 14 (4) of NICN Rules as follows:
“A party moving a Court on a motion ex parte may support the motion by argument addressed to the Court on the facts put in evidence, while the other party to the proceedings, although present in Court may not be heard.”
In the circumstances of the present case, it is not difficult for the Court to find that the Notice of Preliminary Objection filed by the 2nd and 3rd Defendants is not such that this Honourable Court has jurisdiction to entertain. It is alien to the rules of practice and procedure of this Court. To put it differently, the Notice of Preliminary objection filed by the 2nd and 3rd Defendants is incompetent. The objection must and it is hereby accordingly struck out.
I now turn to determine the Exparte application of the Claimant. I had earlier stated the grounds upon which the application was premised.
In arguing the application, the learned counsel for the Applicant, Adeola Adedipe Esq., stated the reason for seeking the leave of Court for enlargement of time within which the Claimant/Applicant may serve his Originating Summons. According to learned Claimant’s counsel, the Defendants had initiated a reconciliatory exercise for the purpose of resolving the impasse which led to the termination of the Applicant’s appointment before the Applicant could serve the Originating Summons. It therefore became impossible for the Applicant to serve the already filed Originating Summons on the Defendant while reconciliation process was in progress. The application was filed because the reconciliation had failed.
He submitted that the purpose of a renewal of an expired Originating Summons is to give the Applicant an opportunity to be heard and it bestows jurisdiction on the Court to entertain the suit as service of Originating process is threshold.
Learned counsel submitted further that pursuant to Order 57 Rule 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules), the Court may either before or after the expiration of time appointed by the Rules extend or adjourn the time for doing any act or taking any proceeding.
Citing the case of RFG Ltd V Skye Bank PLC (2013) 4 NWLR Pt 1344 Pg 251, learned counsel further submitted that there is a distinction between the procedural jurisdiction and substantive jurisdiction of the Court and that an infraction that robs the Court of its procedural competence rather than its substantive competence can be cured.
In further support of his propositions, learned counsel cited the provision of Order 6 Rule 4 NICN Rules; and a plethora of judicial authorities all of which I had carefully considered. They include Adesanoye V Adewole (2004) 11NWLR Pt 884 Pg 414; CCB Nig Ltd V Ogwuru (1993) 2 NWLR Pt 284 Pg 630.
Now, in order to resolve this problem, I considered the applicable provisions of the NICN Rules.
Order 6 Rules 4 and 5 of the Rules, provides as follows:
Rule 4:
(1) Every originating process shall ordinarily be valid for 6 months in the first instance beginning from the date of its issue.
(2) Where the Court is satisfied that it has proved impossible to serve an originating process on any defendant /respondent within its lifespan and a claimant applied before its expiration for renewal of the process, the Court may renew the original or concurrent process for three (3) months from the date of such renewal.
- The Court may forgood cause shown and upon timely application order two renewals in each case, provided that no originating process shall be in force altogether for longer than a period of 12 months. The Registrar shall state the fact, date and duration of renewal on every renewed originating process.(Underlining mine)
The lifespan of the Summons is six (6) months, but renewable subject to some conditions as provided by the Rules of this Honourable Court. Order 6 Rule 5 provides that the cumulative lifespan of any Originating Summons in any situation is twelve (12) months and no more.
From the provisions re-produced above, an Originating Summons is only renewable where the Court is satisfied that it was impossible to serve the process on the Defendants within the lifespan of the Summons. Even in such circumstances, the Applicant must have applied for renewal within the lifespan of the process sought to be renewed, in this instant before 26/05/2016.
Furthermore, an Applicant is required to demonstrate from the facts in the Affidavit in support of the application good cause the reason for the delay in serving the originating process and the application must be brought timeously.
My duty now is to examine, evaluate or assess the Affidavit evidence in support of the application.
The facts explaining the delay in service are as contained in Paragraphs 6, 7 and 8 of the Affidavit in support of the application.
The facts are reproduced hereunder:
- That before service could be effected on the Defendants, the Defendants had set up reconciliatory platform for the issues in dispute to be resolved.
- That in order to ensure that the process of reconciliation is not disturbed; the Applicant refrained from effecting service of the Originating Summons.
- That the lifespan of the Summons has expired and the reconciliatory overtures have failed.
The records of the Court bear out that the Claimant/Applicant commenced this suit by an Originating Summons filed on 26/11/2015. The Claimant did not take further steps in the matter until 06/04/2017, which is more than a year after the date of filing the Originating Summons. It was then that the Applicant filed this instant application for extension of time within which to apply to renew the expired summons and for an order to renew same. There is no Affidavit of Service of the bailiff of court deposing to facts that it was impossible to serve the Defendants.
Learned counsel had cited the provision of Order 57 Rule 4 (1) on the powers of the Court to enlarge time for doing any act. However, sub-rule (4) of the same Order has a proviso for granting such application. It states:
“The Court may on good cause shown, condone non-compliance with any period prescribed by these rules and extend the time within which to comply.” (Underlining mine)
The reason tendered by the Applicant for the undue delay is that the Defendants had set up reconciliatory platform for the issues in dispute to be resolved.
It is trite that negotiation or reconciliatory moves by the parties is not an excuse for failure to comply with the requirements of the Rules of Court. A person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. If, as in this case, the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question of the renewal of the lifespan of an originating process. See Lahan V The Attorney General Western Nigeria (1976) 39 WNLR 660; Eboigbe V N.N.P.C (1994) NWLR Pt 347 @ Pg 649; Local Government Service Commision, Ekiti State & Anor V Olamiju 2014 LPELR 22469
The cases, I have considered above are matters decided on the Law of Statutes of Limitation where a party who fails to initiate action within the prescribed period loses his right of action permanently. These authorities equally apply to cases where a party can revive or renew his right of action even where the prescribed period has elapsed.
In my view, negotiation with a view to settling a matter out of court cannot operate as a good and substantial reason for failure to file within the prescribed period, since an Applicant is entitled to withdraw his Originating Summons in the event of a successful negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. The Applicant herein, during the period of negotiation would have lost nothing if the suit had been filed.
I also agree with learned Applicant’s counsel’s submission that there is a world of difference between improper service and non – service of Court process. However, the instant case is distinguishable from the case of RFG Ltd V Skye Bank PLC (supra) referred to by learned counsel. In that case, the application for the renewal was made within the lifespan of the writ and its life was expanded to enable proper service. But the situation is not the same in this case as the lifespan of the Originating Summons had expired on 25/11/2016, while the application for renewal was filed on 06/04/2017; the application to renew was brought over five (5) months after its lifespan. Order 6 Rule 5 provides that “no originating process shall be in force altogether for longer than a period of 12 months.”
The circumstance in this case is therefore that the Originating Summons was completely dead. The best of excuses could not have revived or resuscitated it or breathe life back to it. I so hold.
Rules of Court are not set up for window-dressing. They are to be applied in accordance with its prescriptions. The present case is not such that this Court can exercise any discretion in favour of the Applicant. In any event, the Applicant reserves the right to re-commence the action where the circumstances permit. The right of action remains extant.
On the basis of the foregoing analysis therefore, my decision I have arrived at is that the instant application is incompetent. The same is and is accordingly struck out. In the same vein, having certified the suit as dead, it shall be and is accordingly struck out.
SINMISOLA O. ADENIYI
(Presiding Judge)
10/04/2018
Legal representation:
Adeola Adedipe Esq. with Messers O.C. Ogunyemi, F. A Shehu, D.Opete and F. Ososanya for Claimant/Applicant
