LEGAL IDEAS FORUM

JOHNSON v. EZE: On whether leave required to serve court process filed at National Industrial Court in any part of Nigeria -: An insight into the Court of appeal landmark decision.

PARTIES IN FULL:
FRANCIS O. JOHNSON
PETROLEUM AND NATURAL GAS AND SENIOR STAFF ASSOCIATION OF NIGERIA [ PENGASSAN]
V.

  1. COMRADE EMMA EZE
  2. COMRADE ABDULLAHI SALE

CITATION: [2021] 2 NWLR PT.1759 AT 91.

Courtesy: Moruff O. Balogun Esq.

Summary of Facts:
The 1st respondent and the 1st appellant contested in an election conducted for the post of President of the 2nd appellant by its National Delegates Conference. The 1st appellant was declared the winner of the election. On his part, the 1st respondent was aggrieved and he made a petition to the electoral panel constituted by the 2nd appellant’s National Delegates Conference. He was dissatisfied with the decision of the panel. So he commenced an action against the 2nd respondent and the appellants as defendants at the National Industrial Court, Calabar Division, and sought declaratory and injunctive reliefs. His originating processes, however, showed that his cause of action arose in Abuja and that the appellants and the 2nd respondent reside and carry on business in Lagos.

On being served with the originating processes, the appellants entered conditional appearance and filed a motion on notice for striking out of the suit for want of jurisdiction. Evidence was presented before the trial court that the constitution of the 2nd appellant stipulates that all internal disputes amongst its members should be resolved by an internal dispute resolution process in which the National Delegates Conference has the final decision.
After taking argument from both sides, the trial court delivered a considered ruling in which it held that the 1st respondent being dissatisfied with the decision of the electoral panel, had exhausted the 2nd appellant’s internal remedies for resolving disputes arising from the election before he filed his action and therefore had a right to approach the court for redress/review of the decision of the electoral panel. The trial court further held that it treats the Federation of Nigeria as one State for service of its processes and that sections 97 and 99 of the Sheriffs and Civil Process Act are applicable to the trial court only in respect of service of an originating process outside Nigeria. Finally, the trial court dismissed the appellants’ application.

The appellants were dissatisfied with the trial court’s ruling.
So, they appealed to the Court of Appeal. During the hearing of the appeal, the Court of Appeal was informed that the suit had been transferred from the Calabar Division to the Abuja Division of the trial court

In determining the appeal, the Court of Appeal considered the following statutory provisions and rules of court:

Sections 97, 98, and 99 of the Sheriffs and Civil Process Act-

97” Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in 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).”

98” A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with the one for service within such State or the Capital Territory and shall in that case be marked as concurrent.

99” The period specified in a writ of summons for service under this Part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.”

Section 21(1) and (2) of the National Industrial Court Act, 2006-
1: The court shall have and exercise jurisdiction throughout the Federation and for that purpose the whole area of the Federation shall be divided by the President of the Court into such numbers of Judicial Divisions as the President may, from time to time, by instrument published in the Federal Gazette decide, and may designate any such Judicial Division or part thereof by such name as he thinks fit.

2: The Court may sit in any Judicial Division as the President of the Court may direct, and he may also direct a number of Judges to Sit in any Judicial Division.

Order 7 rule 15(1) and (2) of the National Industrial Court (Civil Procedure) Rules 2017-
(1) The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria, and is only divided by the President of the Court into Judicial Divisions or Registries for adjudicatory or administrative convenience.

(2) ALL originating processes or other Court processes filed by any party before the Court shall be served on any other party in any part of the Federation without leave of court.

Held: Unanimously dismissing the appeal.

The following issues were raised and determined by the Court of Appeal:

On Territorial jurisdiction of National Industrial Court and whether leave required to serve court process filed at National Industrial Court in any part of Nigeria-
Section 21(1) and (2) of the National Industrial Court Act states that the court shall have and exercise jurisdiction throughout the Federation and for that purpose it shall be regarded as a single court irrespective of the judicial division where it is situated. Further, by virtue of Order 7 rule 15(1) and (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria and is only divided by the President of the court into judicial divisions, or registries for adjudicatory or administrative convenience. And all originating processes or other court processes filed by any party before the court shall be served on any other party in any part of the Federation without leave of court. In effect, for the purpose of service of court processes, be they originating or otherwise, the National Industrial Court has and exercises jurisdiction throughout the country and a party does not require leave for such processes to be served within Nigeria. In the circumstances, the trial court rightly held that it treats the Federation of Nigeria as one State, and that sections 97 and 99 of the Sheriffs and Civil Process Act are applicable to the trial court only in respect of service of an originating process outside Nigeria.

On Meaning of Forum Shopping and attitude of court to Same-
Forum shopping refers to the practice of choosing the most favorable court in which a matter or cause may be entertained or adjudicated upon.
The Courts have deprecated the attitude of forum shopping for instituting actions. In the instant case, the originating summons shows that the cause of action arose in Abuja and that the appellants and the 2nd respondent sued as defendants reside and carry on business in Lagos. In the circumstances, the institution of the suit in the Calabar Division of the trial court amounted to forum shopping.

On Binding effect of constitutions and guidelines of associations and political parties-
Constitutions and guidelines of political parties and associations are made by their members to regulate the conducts of their affairs. Once made and agreed upon, the constitutions and guidelines become binding on the members.

On Right of party aggrieved on election matter to approach court after exhausting internal dispute resolution mechanism of an association-
Election matters are by their nature peculiar and once an aggrieved party has approached an electoral panel set up for that purpose, especially if the said panel was internally set up, he has a right to challenge such decision at a regular competent court of jurisdiction if he is dissatisfied with the decision of the electoral panel. In the instant case, the dispute is on the election conducted by the 2nd appellant’s National Delegates Conference after which it constituted an electoral panel. It therefore followed that being an agent of the National Delegates Conference, the electoral panel enjoyed the same status as the National Delegates Conference. Hence, it would be an aberration to expect any other organ of the 2nd appellant to review the decision of the electoral panel. And being dissatisfied with the decision of the panel, the right step for the aggrieved 1st respondent was to approach the trial court for redress. In the circumstance, the trial court rightly held that the 1st respondent had exhausted the 2nd appellant’s internal remedies for resolving disputes arising from the election before he filed his action in court.

On When action in court becomes an academic exercise and attitude of court thereto-
Where the resolution of an issue one way or the other will be no more than engaging in an academic exercise, the court will not entertain such an issue.
And due to change in circumstances, an issue in an appeal or the entire appeal may become academic at the time it is due for hearing even though there was a live issue at the time the appeal was filed. In the instant case, the suit has been transferred from the Calabar Division of the trial court to its Abuja Division. In the circumstances, the Court of Appeal would refrain from determining the issue which would in the end amount to an academic exercise.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.

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