THE DIRECTOR GENERAL INDUSTRIAL TRAINING FUND v. CENTAGE SAVINGS & LOANS LIMITED
(2018)LCN/12140(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of November, 2018
CA/L/920/2014
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“It is the duty of the Court to see that justice is never defeated by technical rule. No doubt the rules are made to be compiled with but as held in the Supreme Court case of MICHAEL OKAROH v THE STATE [1988] 3 NWLR (PT 81) 214 at 220, the rules of Court should be seen as a subservient hand maid to justice not as omnipotent master at war with justice. See also OLLY v TUNJI & ORS (2012) LPELR 7911 (CA).” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
THE DIRECTOR GENERAL INDUSTRIAL TRAINING FUND Appellant(s)
AND
CENTAGE SAVINGS & LOANS LTD Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
The appeal is against the Ruling of SAIDU, J delivered on the 15th of April, 2014 at the Federal High Court, Lagos division. The Appellant/plaintiff had commenced the action by originating summons pursuant to the Industrial Training Fund Act demanding that the Respondent/defendant furnish them with their account for the purpose of assessment of the contribution payable to the Appellant.
The Respondent then filed a preliminary objection inter alia on the ground that the conditions precedent for the commencement of the action has not been fulfilled. The lower Court upheld the objection and struck out the suit. The Appellant been dissatisfied with the Ruling filed a Notice of Appeal on the 2nd of July, 2014 based on three grounds.
The parties filed their respective briefs on the 7th of March, 2017 and 7th of April, 2017 respectively. The Appellant also filed a reply brief on the 12th of May, 2017 but deemed properly filed 3rd of July, 2017.
The Appellant’s brief distilled three (3) issues thus:
1. Whether by virtue of Sections 5(1) &
(2), 11(2), 14 and 15 of the Industrial Training Fund Act LFN 2004 (as amended) it is only the director general of the industrial training fund that can request for the returns, books and other information from the defendant for examination.
2. Whether the decision of the learned trial judge would have been the same if he had considered exhibit ?C? attached to the originating summons dated 7th February, 2013, other exhibits and Sections 5(2) and 15 of the Industrial Training Fund Act LFN 2004 (as amended).
3. Whether the defendant’s memorandum of appearance, counter affidavit and notice of preliminary objection filed out of time were competent.
The Respondent formulated a single issue thus:
“Whether having regard to the provision of Section 14 of the Industrial Training Fund Act LFN 2004 and the facts and the circumstances of this case, the lower Court was not right to have struck out the plaintiff’s suit for failure to comply with the provisions of the Act.”
The issues as formulated by the Appellant are hereby adopted in resolution of this appeal safe for reordering and compressing same.
Since an appellate Court has the power to reframe or further compress issues for determination, I shall not hesitate to invoke same. The purpose is to lead to a proper and more judicious determination of the appeal. See OMAYE & ANOR v OMAGU & ORS (2007) LPELR 3558 (CA); AGBAKOBA v INEC & ORS (2008) LPELR 232 (SC).
Therefore, having carefully and thoroughly perused all the issues raised by the Appellant and Respondent in this appeal; the arguments therein and the record of appeal and I am of the firm view that this appeal will best be resolved by first considering the issue 3 of the Appellant. The resolution of which will determine if and whether there will be need to resolve the other issues. Thus, the issue three will come in as the first issue and issue one and two if to be eventually resolved will join to form a single issue and come in as issue 2.
ISSUE ONE
Appellant’s counsel on his 3rd issue submitted that the lower Court refused to consider the argument that the processes filed by the Respondent were filed out of time, without leave and incompetent. He relied on Order 7 Rule 1 of the Federal High Court Civil Procedure Rules 2009; NNOYE v ANYICHIE & ORS (2005) 1 SC 96 at 114; SOLANKE v SOLOMON (1974) 1 SC at 148. He urged this Court to hold that the defendant’s processes filed out of time and without leave is incompetent.
Respondent’s counsel on the other hand argued that the issue ought to be struck out because it did not arise from the judgment of the lower Court and the ground of appeal from which the issue was distilled is liable to be struck out as well. He referred to AFRICAN PETROLEUM PLC v ADENIYI & ORS [2011] 15 NWLR (PT 1271) at 560; IDAKULA v ADAMU [2001] 1 NWLR (PT 694); SARAKI v KOTOYE [1992] 9 NWLR (PT 264); BABALOLA v STATE [1989] 4 NWLR (PT 115).
Appellant’s counsel submitted in response that the issue is very competent and that the lower Court erred in law when he failed to consider all arguments when his decision on the matter will dispose all issue in contention. He contended that the case of African Petroleum (supra) cited by the Respondent is not applicable to this appeal because the Court in that case did not consider the issue of derivative action and deferred it to consider same with the substantive matter and that it is different from this present case which was final and ought to have considered all issues raised before him especially when it borders on the competence of the processes filed.
RESOLUTION
The Appellant’s contention on his third issue is that the lower Court failed to consider his argument that the processes filed by the Respondent who was the defendant at the lower Court was filed out of time and without obtaining leave for filing out of time. The Appellant had filed his originating summons with other accompanying processes on the 7th of February, 2013 while the Respondent filed a memorandum of appearance, counter affidavit and notice of preliminary objection on the 7th of October, 2013 which is about 8months after the originating processes was filed and contrary to the provisions of Order 7 Rule 1 and Order 29 Rules 1, 2 & 4 of the Federal High Court Civil Procedure Rules which provides that a defendant served with an originating process is to file his memorandum of appearance along with other processes within 30days and if he is raising an objection to the jurisdiction of the Court, he must along with the application file a memorandum of conditional appearance within 21days after service of the originating process.
?The foregoing facts are not being disputed, even by the Respondent’s counsel, but the Respondent’s response to the contention of the Appellant is that the issue did not arise from the judgment of the lower Court and therefore the ground of appeal and the issue thereon is incompetent. The record of appeal shows that the Appellant did orally raise the issue at the lower Court on two different occasions but the lower Court did not make any comment on the objection throughout the course of the proceedings. At page 59 and 77 of the record the Appellant raised the objection thus:
Page 59:
There process (sic) were filed about 4 months after we have filed our originating process. They were filed out of time without the leave of this Court.
Page 77:
We also submitted that all they have filed are filed out of time without leave of Court. We pray the Court to strike out the Respondent claim.
It is trite that the Court must pronounce on all issues before it and where at the conclusion of the case the lower Court left unattended the issues and objections raised, it would be deemed that the issue between the parties has not been resolved. More so if the issue or objection is considered irrelevant, the lower Court still owes the duty to state why they are so considered irrelevant so as to show how the issue or objection has been disposed off. Even if the lower Court felt that the objection was not properly raised, he should have stated so. See ALI v UZOIGWE & ORS (2016) LPELR 40972 (CA); IKPEAZU v OTTI & ORS (2016) LPELR 40055 (SC).
It is my view that the issue of filing out of time goes to the competence of the processes and should have been considered by the lower Court. As a matter of fact it is immaterial that the issue did not form part of the Ruling of the lower Court as argued by the Respondent, as it is settled that where the lower Court fails to pronounce on a vital issue raised by a party, the appellate Court can send the case back for retrial or resolve the issue itself. See OVUNWO & ANOR v WOKO & ORS (2011) LPELR 2841 (SC) where the apex Court held that: the proper steps for an appellate Court as this Court to take where the lower Court has failed to resolve a vital issue raised before it include and I quote that ‘if the issue was vital to the resolution of the dispute between the parties, they would be expected to either order a retrial or resolve the issue themselves upon the evidence available if the question of credibility of witnesses would not arise.’ (underlining mine)
Also by the general powers conferred on this Court by the provisions of Section 15 of the Court of Appeal Act, 2016, this Court is empowered to look into this issue. It provides thus:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
Going forward, as it relates to the objection raised by the Appellant and which the trial Court failed to resolve, Order 51 Rule 1 of the Federal High Court Civil Procedure Rules provides that the effect of non-compliance with the requirements of the rules should be treated as an irregularity and if so treated will not nullify the proceedings or any document, judgment or order therein. The Court also have the discretion to set aside either wholly or in part or even allow amendments. Order 51 Rule 1(1) & (2) reads:
EFFECT OF NON-COMPLIANCE
(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason anything done or left undone, been failure to comply with the requirements of these Rules, whether in respect of time, place, manner form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The Court may on the ground that there has been such a failure as mentioned in Sub-rule (1) of this rule and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) dealing with the proceedings generally as it thinks fit.
The Respondent in this case is not disputing the fact alleged against it by the Appellant that its process were filed out of time and no leave of Court was obtained from the Court to regularize same. The issue raised by the Appellant on this ground undoubtedly has merit but having regard to Order 51 Rule 1, it is within the jurisdiction of the Court to treat the failure to file the process within time prescribed or obtain leave after it was filed out of time, as an irregularity. That ought to and will be done in the instant case.
This issue is therefore resolved in favour of the Respondent.
I shall proceed to resolve the other issues in this appeal because the processes of the Respondent filed at the lower Court are deemed proper and competent.
ISSUE TWO
Appellant’s counsel submitted that by the combined provisions of Sections 5 (1) & (2), 11(2), 14 and 15 of the Industrial Training Fund Act, it is not only the director general who can ask an employer to provide her books and returns for examination as provided in Section 14. He argued that by virtue of Section 5(2), officers, agents and employees of the fund can also request for the books of employers for examination. That since agents and officers can institute action on behalf of the director general and also examine books on behalf of the director general; they as well have the power to demand for the examination of the books.
Counsel submitted that exhibit A & B written by the agents to the Appellant was properly written and Section 14 should not be read in isolation to get the intention of the law makers. He referred to BAKARE v NRC (2007) 7 – 10 SC 1 at 3; NPA PLC v LOTUS PLASTICS LTD & ANOR (2005) 12 SC (PT 1) 19 at 4.
On the second issue, Appellant counsel submitted that by exhibit C, the Appellant met the requirement in Section 14. He submitted that the exhibit had attached form 5 which requires the Respondent to assess herself and make payment. He added that exhibits F & G also made similar demands and that when the Respondent failed to comply, the Appellant had to brief their solicitor who wrote exhibits A & B to the Respondent. Counsel submitted that had the lower Court considered all the exhibits, he would have arrived at a different decision.
Counsel urged this Court to set aside the lower Court’s Ruling and enter judgment as per the Appellant’s originating summons.
Respondent’s counsel in opposition submitted that the power of the director general to demand for the Respondent’s record is limited by Section 14 of the Act. That a company is liable to produce her books of account on demand by the director general and not a 3rd party as in this case.
Respondent’s counsel also contended that the Appellant cannot argue on one hand that Section 14 does not make it compulsory for the director general to make the requisition personally and then turn around to argue again that the Appellant had met the requirement of the law because of the issuance of exhibit C. He argued further that outright demand for payment via a private law firm without there first been an assessment is not the proper procedure. He submitted that where the law prescribe a method for exercising a statutory power, any other method is excluded. He relied on UDE v NWARA [1993] 2 NWLR (PT 278) 638 at 661, paras D – E; AUCHI POLY v PETER OKUOGHAE [2005] 10 NWLR (PT 933) 291, para H – A; EJIOFOR v OKEKE [2010] 7 NWLR (PT 665) 363 at 381; OBIOGHA v DAFE [1994] 2 NWLR (PT 157) 173.
Respondent counsel submitted that the reasoning of the Court cannot be faulted and that where a statute mentions specific things the intention is that those not mentioned are not to be included.
Appellant’s counsel in response submitted that the director general may require any employer to furnish returns by virtue of Section 14 of the Act and that he requested the Respondent to assess her account and pay. He submitted that when the Respondent refused to pay, the director general through the agents requested for the production of accounts for examination. He submitted that the power to assist the director general was conferred on the appointed officers/agents by Section 5(2) of the Act.
Learned counsel also submitted that the word ‘may’ in Section 14 is permissive and not mandatory. He referred to NIGERIA NAVY & 10 ORS v LABINJO (2012) 6 SC (PT 1) 44 and submitted that it is not mandatory for the director general to demand for assessment and payment and that it was when the Respondent refused to pay after series of demand that the Appellant’s solicitors wrote to demand for the record.
Appellant’s counsel further submitted that it is not the intention of the law makers that only the director general should have power to make demands for records of all companies as it will be impossible for only the director general to do so. He added that a statute cannot be read in isolation, that all parts must be read as a whole so as to determine the intention of the law. He referred to OLA v MRS WILLIAMS & ORS (2002) FWLR (PT 121) 1996 at 2007 (CA); DANTSOHO v MOHAMMED (2003) FWLR (PT 150) 1717 at 1742 SC; NURTW & ANOR v R.T.E.AN & ORS (2012) 1 SC (PT II) 119 at 143; RABIU v STATE (1980) 8 – 11 SC 130 at 151; TANKO v STATE (2009) 2 SC (PT 1) 198 at 238; amongst other cases. He submitted that the lower Court gave a wrong interpretation to the provision of Section 14 and that a Court is not to ascribe meanings to the clear and unambiguous provision of a statute in order to make such provision conform with the Court’s own view.
Appellant’s counsel concluded by saying that the Respondent is only trying to use technical argument to avoid paying her statutory training contribution.
RESOLUTION
The Industrial training fund was established with the statutory obligation to assess and collect training contributions from employers. See Sections 5(1)(a) and 6(1)(a) of the Industrial Training Fund (Amendment Act) 2011. Section 5(1)(a) reads:
(1) The Minister may, with prior approval of the President appoint a fit person to be called the Director of the Industrial Training Fund who shall be the administrative head of the Fund, and, subject to the directions of the Council, shall be responsible-
(a) for the assessment of contributions under this Act and for the collection and payments of moneys into the fund…’
Section 6(1)(a):
‘Every employer having either 5 or more employees in his establishment, or having less than 5 employees but with a turnover of N50m and above per annum, shall, in respect of each calendar year and or prescribed date, contribute to the fund one per centum of his total annual payroll.’
The contention therefore is whether the Appellant can through his appointed officers/agents carry out assessment and demand for the payment of the Respondent’s contribution. The Appellant has contended that the Industrial Training Fund Act did not intend that it is only the director general of the fund that can carry out this statutory obligation. While the Respondent is of the strong opinion that it is only the director general and nobody else that can assess and make demand for contributions thereon. The Respondent in his contention is of the view that only the provisions of Section 14 of the Act should be considered in the determination of this issue.
However, after perusing the Act, I cannot but disagree with the Respondent that it is only the provision Section 14 of the Act that is relevant to the determination of this issue. It is trite law as expressed in a plethora of authorities that a statute cannot be read in isolation to other parts of that statute. All the parts must be read as a whole so as to properly determine the intention of the law. See OKE & ANOR v ATOLOYE & ORS [1985] NWLR (PT 9) 578; OLAOSEBIKAN v INEC & ORS. In MBACCI & ORS v AG ANAMBRA STATE & ANOR (2016) LPELR 41020 (CA), pages 27 – 28, paras F – B this Court held that:
“It is trite that in the construction of a statute, the entire provisions of the statute should be considered collectively, holistically and no single section should be construed disjointedly or separately. The purpose of this is to give proper interpretation and purposive meaning to the statute in line with the intendment of the law makers. Such a collective interpretation of the section of the statutes would also ensure that the sections are not interpreted in a manner that would be inconsistent with other provisions of the statute and which may lead to absurdity or confusion.”
It is therefore necessary and vital to consider the various relevant provisions of the Act that is applicable to the matter arising in the instant case. This will be helpful in determining the intendment of the Act and help resolve this issue without ascribing unnecessary meanings to the Act.
Reproduced below are all the relevant sections of the Industrial training fund Act particularly as it relates to who has the responsibility to assess and collect contributions from employers. Section 5 (1)(a) & (2) provides:
5. (1) The Minister may, with prior approval of the President appoint a fit person to be called the director of the industrial training fund who shall be the administrative head of the fund, and subject to the directions of the council, shall be responsible-
(a) for the assessment of contributions under this Act and for collection and payments of moneys into the fund;
(2) The council may, from time to time, appoint officers, agents or employees of the fund to assist the director general in the performance of his duties under this Act, who shall be subject to the general control of the director general.
While Section 11(2) reads:
“Any action for the recovery of contributions under this section may be instituted by the council, director general, agents or officers of the fund on behalf of the director general, and where the action is instituted in a magistrate’s Court, any person authorized by this sub-section may appear and conduct the case.”
On the other hand, Section 14 provides:
“The director general may require any employer to furnish such returns and other information and to keep such records and produce them for examination by or on behalf of, the director general as appears to the director general to be necessary for carrying out his functions under this Act.”
Also, Section 15(1) states:
“If any employer fails, neglects or refuses to furnish the required returns specified in Section 14 of this Act, the director general of the fund or any staff authorized on his behalf shall be and is hereby empowered to assess, according to his best judgment, the appropriate contribution the employer shall pay to the fund; but such assessment shall not affect the authority of the director general or any staff authorized on his behalf to assess the actual amount of the employer’s liability when the employer subsequently makes his returns.”
Section 5(2) clearly provides that the council may, from time to time, appoint officers, agents or employees of the fund to assist the director general in the performance of his duties and the people so appointed shall be subject to the general control of the director general. One of such duty of the director general is the assessment and making of demand for contribution from employers by asking them to produce their account books to determine how much they are to pay. This section of the Act clothes the officers/agents of the fund with the power to assist and act on behalf of the director general in carrying out his duties under this Act. The wordings are clear, plain and unambiguous and should therefore be ascribed their ordinary meaning. See OLUBEKO v FRN (2014) LPELR 22632 (CA); ONOCHIE v ODOGWU [2006] 6 NWLR (PT 975) 65.
The Act went further in Section 11(2) to state that the director general or his officers can institute action in Court for recovery of contributions. Section 14 of the Act which is been solely relied upon by the Respondent equally makes provision for the director general or the officers of the fund on behalf of the director general to examine the records produced by the employers for the purpose of determining their liability. It suffice to say that since the officers can examine the records of the Respondent, it cannot be the intention of the law makers that only the director general can make a request for such records before the assessment/examination can be carried out. What other reason would there have been for asking an employer to produce their books of account if not to determine the liability of the employer to the training fund and equally demand for the payment of such determined liability or indebtedness.
Consequently, requesting to produce records, examination of same and the demand for payment of the determined contribution all have a flow and are in sync and I see no reason why the officers/agents/employees of the fund cannot carry out all these duties on behalf of the director general.
I am mindful of the fact that the word ‘may’ as used in Section 14 of the Act is capable of bearing different interpretations. However it has been decided in a number of cases of this Court and the Supreme Court that the interpretation of the word depends on the intention of the law makers and the con in which it is used in a particular provision. I am of the humble view as regards this particular provision of the Act that word ‘may’ in this provision imports a discretion. The use of the word ‘or’ also adds credence to this stance. See UBANI-UKOMA & ORS v SEVEN-UP BOTTLING COMPANY PLC & ANOR (2009) LPELR 3915 (CA); AGBAJE v FASHOLA [2008] 6 NWLR (PT 1082); UGWANYI v FRN (2012) LPELR 7817 (SC); CBN v OKEB NIG LTD & ORS (2014) LPELR 23162 (CA); EDEWOR v UWEGBA [1987] NWLR (PT 50) 313.
Also Section 15(1) provides that the director general or any staff authorized on his behalf is empowered to assess, according to his best judgment, the appropriate contribution the employer shall pay to the fund; but such assessment shall not affect the authority of the director general or any staff authorized on his behalf to assess the actual amount of the employer’s liability when the employer subsequently makes his returns.
A community reading of Sections 5 (1)(a) & (2); 11(2); 14 and 15(1) of the Act reveals that the intendment of this Act is to allow the director general in the performance of his statutory duty, delegate where he so feels to other officers or agents under the fund and contrary to the argument of the Respondent about the private law firm that wrote letters on behalf of the fund, I am of the firm view that the Respondent’s argument is misconceived and is just looking for technical grounds upon which to avoid payment of his contribution. The Act did not specify who an agent should be and I therefore see no issue in the use of a private law firm. More so, Section 16 of the Act defined an employee thus:
’employees’ means all persons whether or not they are Nigerians employed in any establishment in return for salary, wages or consideration, and whether employed full-time or part-time, and includes temporary employees who work for periods of not less than thirty days; The most important thing is for the officers/agents to be acting on the instructions of the director general. It is clear from the several letters of demand written to the Respondent that the officers were acting based on the instruction of the director general.
The Respondent also argued that the letters written to them did not comply with the provision of the Act, that it was an outright demand. I have gone through all the 7 letters written to the Respondent starting from the year 2011 and I must say that it does not lie in the mouth of the Respondent to say that the letters were an outright demand for payment when the form 5 which was attached to the letters written was meant to be used by the Respondent to impute all the details of account and help the Appellant make assessment as to their liability. The content of the letter even made mention of carrying out assessment and it therefore constitute a request for assessment and eventual payment of the contribution due.
The letter marked exhibit ‘E’ stated thus:
you are advised to complete and return to this office, without further delay, ITF Form 5 with evidence of payment of the statutory training contribution in accordance with S.12 of this Act, to avoid the transfer of your file to our legal department for necessary action
The letter marked exhibit ‘C’ also stated that:
‘…you are therefore, advised to complete the attached ITF Form 5 and return same to the address on the Form within 14days of receipt of this letter with your cheque/bank draft for the outstanding Training contribution, the neglect of which may
The letter marked exhibit ‘B’ stated thus:
To enable our client assess the amount due and payable by you, we have their instructions to inform you to produce your audited accounts, staff payroll and other returns from 2008 –2011. To this effect, our client will be in your office on 20th November, 2012 by 10am to carry out the verification
There is no way the Appellant would have been making a demand for payment of contribution without equally needing to verify the Respondent’s account. It is only after an employer refuses to produce their records or provide the required returns that the fund can make a best judgment estimation of the liability of the employer. See Section 15(1) of the Act.
The lower Court misconstrued the provision of Section 14 and did not even consider the part where the director general or the officers on behalf of the director general can carry out examination on the records of the Respondent. He also failed to consider the exhibits in arriving at his decision. Therefore contrary to the decision of the lower Court, I hold that the director general can act through its officers/agents/employee for the purpose of carrying out assessment to determine the liability of the Respondent and also make demand for payment of contributions.
This issue is therefore resolved in favour of the Appellant.
RESPONDENT’S NOTICE
By a Respondent’s notice filed on 10th March, 2017, the Respondent’s counsel urged this Court to also affirm the decision of the lower Court on the grounds that the lower Court lacked the requisite jurisdiction to entertain the Appellant’s suit and that the Appellant’s relief four as contained in the originating summons is vague and meaningless. The Respondent formulated a sole issue thus:
“Whether the plaintiff’s originating summons dated 7th February 2013 is competent and clothed the lower Court with the requisite jurisdiction to grant relief 4 or any other reliefs therein contained in favour of the plaintiff.”
Respondent’s counsel submitted that the Appellant’s originating summons is incurably defective both in substance and in form and that it ought to be dismissed or struck out for being a gross abuse of Court process. He added that a perusal of the process will reveal that it does not contain questions for the consideration of the Court below as required by Order 3 Rules 6 & 7 of the Federal High Court Civil Procedure 2009. He relied on OBASANYA v BABAFEMI (2000) FWLR (PT 15) 2585 at 17; OKEZIE v CBN & ORS [2012] 9 NWLR (PT 1304) 89.
Counsel further submitted that the Appellant’s relief four (4) is vague and at large and that the Court cannot amend or grant a claim that is vague because a Court order should not be in vacuum and that the Court is empowered to strike out same. He relied on COMMISSIONER OF WORKS BENUE STATE v DEVCON LTD [1998] 3 NWLR (PT 83); GOVT OF GONGOLA STATE v TUKUR [1989] 4 NWLR (PT 117); A.G OGUN v A.G FEDERATION [2002] 18 NWLR (Pt 798) 232 at 290; ABUBAKRI v SMITH & ORS (1073) 8 NSCC 451; ADEYEMI v IKE OLUWA & SONS LTD [1993] 8 NWLR (PT 309) 27 at 51 – 52; AJI v CHAD BASIN DEV AUTHORITY (2004) ALL FWLR (PT 237) 424 at 443; UZOUKWU v EZEONU II [1991] 6 NWLR (PT 2000) 708 at 784 – 785.
Appellant’s counsel in reply to the Respondent’s notice submitted that the Appellant has no originating summons dated September, 2011 as contained in grounds 2 of the Respondent’s notice. That the Appellant’s originating summons dated 7th February, 2013 is competent.
Appellant’s counsel also contended that the Appellant’s relief 4 presented in the alternative is not vague. He argued that in bringing the originating summons, form 3 as provided in the Federal High Court Rules was followed. He urged this Court to hold that the Appellant’s relief 4 is very competent as it is a relief which can be awarded in place of relief 3. He referred to THE M.V. “CAROLINE” MAERSK SISTER VERSSEL TO M.V. CHRISTIAN MAERSK & 2 ORS v NOKOY INVESTMENT LTD [2002] 12 NWLR (PT 782) 472 SC at 508, para A to submit that an alternative award is an award which can also be made instead of another and that it is not an additional or further award.
RESOLUTION
The Respondent in his notice contended that the originating summons of the Appellant filed at the lower Court is incompetent because it does not contain questions for determination and that the relief four in the originating summon is vague and the process should therefore be struck out.
Order 3 Rules 6 & 7 of the Federal High Court Civil Procedure 2009 provides for the proceedings which may be begun by the use of an originating summons. The rules prescribe as follows:
“6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration as to the right claimed.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
In ANYANWOKO v OKOYE & ORS (2010) 1 S.C (PT 11) 30, the Supreme Court while interpreting Order 6 Rule 3(1) of the Federal Capital Territory Court rules held that where the originating summons is in substantial compliance with the rules of Court, by containing the reliefs and remedies sought from the Court it cannot be faulted for not containing questions for determination. I am persuaded that the principle enunciated by the Supreme Court holds good in the interpretation of Order 3 Rules 6 & 7 of the Federal High Court Civil Procedure 2009.
The rules provide three different format and the Appellant used the Form 3 as provided by the rules. If at all the Appellant chose the wrong format, it is an irregularity in my view and it goes only to form and not substance. Unless it is an issue of substantial law that has been violated, technicalities must not be allowed to hold sway.
As I have earlier held in the main appeal, Order 51 of the same rules allows for failure to comply with the provision of the rules to be regarded as an irregularity and will not render the process filed incompetent. It is the duty of the Court to see that justice is never defeated by technical rule. No doubt the rules are made to be compiled with but as held in the Supreme Court case of MICHAEL OKAROH v THE STATE [1988] 3 NWLR (PT 81) 214 at 220, the rules of Court should be seen as a subservient hand maid to justice not as omnipotent master at war with justice. See also OLLY v TUNJI & ORS (2012) LPELR 7911 (CA).
From the record of appeal it is clear that the Appellant followed the format in Form 3 of the rules. There is no doubt that the originating summons contained questions for determination and reliefs sought. There is nothing vague or unclear about what the Appellant wants the Court to decide. The reliefs and questions for determination as contained in the originating summons are reproduced below:
1. A Declaration that the Defendant is bound to make her statutory contributions to the Plaintiff in accordance with the Industrial Training Fund Act.
2. An Order that the Defendant produce her books of account, payroll and other returns from 2008-2012 to the Plaintiff with a view to determining her liability and assessing how much is payable by the Defendant to the Plaintiffs in accordance with the Industrial Training Fund Act.
3. An Order that the amount so determined be paid by the Defendant to the Plaintiff from 2008 -2012.
4. That on the alternative, an Order that using the best of judgment, the Defendant do pay the sum of N50 Million to the Plaintiff being an unpaid statutory contribution from 2008 ? 2012, for the determination of the following questions:
1. Whether the Defendant is bound to pay her 1% annual payroll to the Plaintiff as statutory contribution in accordance with the Industrial Training Fund Act.
2. Whether the Defendant is bound to furnish the Plaintiff with her accounting returns with a view to determining her liability and assessing the amount payable by the Defendant to the Plaintiffs.
The originating summons is therefore competent likewise the relief 4 which the Respondent contends to be vague. In view of the fact that the Respondent has refused to produce her record for assessment of her contribution, the Appellant by the virtue of Section 15 of the Act can seek for relief 4. The section provides thus:
“If any employer fails, neglects or refuses to furnish the required returns specified in Section 14 of this Act, the director general of the fund or any staff authorised on his behalf shall be and is hereby empowered to assess, according to his best judgment, the appropriate contribution the employer shall pay to the fund; but such assessment shall not affect the authority of the director general or any staff authorised on his behalf to assess the actual amount of the employer’s liability when the employer subsequently makes his returns.”
To my mind there is nothing vague or unclear about the reliefs sought by the Appellant. A fortiori, the fourth relief sought by the Appellant was made in the alternative to the third relief. It is left for the Court after evaluating the facts on record to determine if the Appellant is entitled to be granted the main relief or the alternate one. The Appellant’s reliefs as per its Originating Summons are therefore competent and it is one that can be awarded in place of relief 3.
Accordingly, the Respondent’s Notice lacks merit and it is hereby dismissed.
On the whole, this appeal is meritorious and it is hereby allowed.
The Ruling of the lower Court coram SAIDU, J delivered on the 15th of April, 2014 at the Federal High Court, Lagos division is hereby set aside. The suit is hereby remitted to the Chief Judge of the Federal High Court for re-assignment to another judge and should be accorded accelerated hearing. Costs of N200,000.00 (Two Hundred Thousand Naira) is awarded in favour of the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: I am in agreement with the reasons proffered by His Lordship, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, in the lead judgment.
I, too allow the appeal and the ruling delivered by SAIDU, J. of the Federal High Court, Lagos Division, in re-Suit No. FHC/L/CS/148/2013 on 15 April, 2014 is accordingly set aside.
I, adopt the consequential orders, inclusive of costs, contained in the lead judgment, as mine.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
Appearances:
M. C. Okwara For Appellant(s)
Mathew Burkaa with him, Adesina Kayode For Respondent(s)
