IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: 29TH APRIL, 2019 SUIT NO: NICN/YEN/137/2015
MR. EGBUJIOBI DECLAN OBI --------------- CLAIMANT/RESPONDENT
TECON OIL SERVICES LIMITED ------------------ DEFENDANT/APPLICANT
I.C. Odunze for the Claimant/Respondent
C. Uriem for the Defendant/Applicant
By a Further Amended Statement of Facts dated and filed on 30th July 2018, the Claimant claims the following reliefs against the defendant:
i. The sum of N8, 368,198.56 (Eight Million, Three Hundred and Sixty Eight Thousand, One Hundred and Forty Four Naira, Fifty Six Kobo (sic)) being the Claimant continued salary from December 2013 to October 2015 since they have not paid him his severance benefit.
ii. The sum of N10, 915, 041.6 (Ten Million, Nine Hundred and Fifteen Thousand, Forty One Naira, six kobo) being the gratuity/severance benefit entitled to the Claimant on resignation.
iii. The sum of N288,109.05 (Two Hundred and Eighty Eight Thousand, One Hundred and Five Naira, point five kobo (sic)) being the Christmas bonus of the Claimant for the Christmas for the Christmas (sic) of 2014.
iv. The sum of N384, 145.44 (Three Hundred and Eighty Four Thousand, One Hundred and Forty Five Naira, Forty Four Kobo) being the monthly salary of the Claimant from the month of November 2015 till date this suit is finally determined.
v. N15, 000, 000 (Fifteen Million Naira only) being general damages for unlawfully withholding and denial of the Claimant’s lawfully (sic) terminal benefits.
This decision is in respect of the Defendant’s Notice of Preliminary Objection dated 6th December, 2018 and filed on 7th December, 2018 challenging the jurisdiction of the court to entertain this suit on the grounds of the suit having not been commenced by due process of law because the Writ of Summons was not signed by either the Claimant or his counsel.
In support of the Application is an Affidavit of 9 paragraphs deposed to by one Richard Ozor, a Litigation Officer in the Law Firm of Aguma & Co. the solicitors to the Defendant/Applicant. Annexed to the Application is one (1) document marked exhibit ‘A’. The Defendant/Applicant equally supported the Application with a Written Address wherein one issue was crafted for the determination of this Court, to wit: Whether this Honourable Court has the jurisdiction to hear and determine this suit?
While arguing the sole issue, learned counsel for the Defendant/Applicant posited that, the issue of jurisdiction can be raised at any stage of the proceedings in the trial court, the Court of Appeal, or the apex court, referring to Egharebua V. Eribo & Ors (2010) 9 NWLR (Pt. 1199) 411.
It was further argued that for a court process to be valid it must contain the following:
a. The signature of counsel which may be any contraption;
b. The name of counsel clearly written;
c. Who the counsel represents; and
d. The name and address of the Legal Firm.
See SLB Consortium Ltd V. NNPC (2011) 9 NWLR (Pt. 1252) 317 – 338, Paras. F – A. Order 6 Rule 2 of the Rules of Court 2017 (not 2016 as cited by counsel).
That any Writ of Summons not signed (as in the instant case as shown in exhibit A) is a fundamental defect that goes to the root of the suit and robs the court of the jurisdiction to here and determine same, even if the other originating processes have been signed by the legal practitioner. The non-signing of the Writ of Summons renders the entire process null, void and invalid. See Nzom & Anor V. Jinadu (1987) 2 SC 205; Alabi & Ors V. Oyewumi & Ors (2015) LPELR-24271(CA).
That a court is only competent to hear and determine a suit upon the following conditions having been met:
a. It is properly constituted as regards members of the Bench and no member is disqualified for one reason or the other.
b. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
c. The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to exercise of jurisdiction.
See Madukolu V. Nkemdilim (1962) 2 SCNLR 341.
That the Writ of Summons in this suit having not been signed is incurably bad in law thereby affecting the competence of the court to entertain this suit and rendering nugatory any proceedings no matter how well it is conducted. See Lado V. CPC (2011) 12 SCNJ 383, and SkenConsult (Nig) Ltd & Anor V. Ukey (1981) 1 SC 6.
Concerning the Claimant/Respondent’s Reply on Points of Law, learned counsel to the Defendant/Applicant argued by way of adumbration that, since there is no accompanying Counter-Affidavit, the Claimant is deemed to have admitted the facts in the affidavit in support of the Notice of Preliminary Objection.
The court is therefore urged to either dismiss the suit or strike same out with cost of N100, 000.00 in favour of the Defendant/Applicant.
In opposition to the Notice of Preliminary Objection, the Claimant/Respondent filed a Reply on Points of Law dated 28th February, 2019, and filed on 5th March, 2019.
The learned counsel to the Claimant/Respondent submitted that, while it is true that by Order 6 Rule 2 of the Rules of Court 2017, Originating Processes are to be signed by either the Claimant or his counsel, by Order 5 Rule 1 of the Rules of Court 2017 such failure can be treated as an irregularity since this court is not rigid in applying its Rules.
That since the Claimant’s Originating Process has the name, address and seal of the counsel to the Claimant on it, and the Statement of Facts was signed by the counsel, the failure of counsel to sign the Originating Process is an omission on the part of counsel which the court can treat as an irregularity and give direction in the circumstance of the case.
That a court is not to interpret a statute as to deny citizens access to the court, and that the court should move away from technicality and consider the justice of the case. See T.S.P.D.C.O.N. Ltd V. Agbara (2016) 35 WRN 94, and Amaechi V. INEC (2009) 3 LC 433.
Regarding the defendant/applicant’s submission that the Reply on Points of Law was filed without a Counter-Affidavit, it is submitted that there was no need for a Counter-Affidavit because the Objection was based on issues of law. That the Reply on Points of Law is therefore proper before the court, and the court should discountenance the arguments of the Defendant/Applicant.
The court is therefore urged to refuse the application and give necessary directions in the interest of justice.
Having carefully considered the processes, arguments and submissions as well as adumbrations of counsel on both sides in respect of the Notice of Preliminary Objection, I shall adopt the sole issue identified by the Defendant/Applicant’s counsel in determining this application, to wit: : Whether this Honourable Court has the jurisdiction to hear and determine this suit?
Before I consider the merit or otherwise of the application, it is important to resolve the issue raised by the learned counsel to the Defendant/Applicant to the effect that since the Claimant/Respondent did not file any Counter-Affidavit to counter or refute the depositions in the Affidavit in support of the Notice of Preliminary Objection, he is deemed to have admitted the facts in the supporting affidavit.
Having seen the reliefs and the grounds of the application, I do not think it was necessary for the Defendant/Applicant to have accompanied the Notice of Preliminary Objection with an affidavit. The Objection which is premised on points of law can be determined without any affidavit in support. The supporting affidavit itself did not depose to serious issues of facts rather than the deponent having seen the Writ of Summons filed on 22nd November, 2015, and that same was not signed by the Claimant or his legal counsel, and then exhibiting the said Writ as exhibit ‘A’. See paragraphs 4, 5 and 6 of the supporting affidavit.
The Claimant/Respondent filed a Reply on Points of Law which I think suffices in the circumstance of this application. See Alhaji Lai Mohammed V. Chief Afe Babalola, SAN (2011) LPELR-8973(CA), where the appellate court held thus on whether or not an affidavit is necessary in support of a Notice of Preliminary Objection:
“A preliminary Objection may or may not be supported by affidavit. It all depends on what is being objected to. Where the objection is based on law, an affidavit may not be necessary, but if it is based on the facts, an affidavit is mandatory. In other words, where the preliminary objection deals strictly with issues of law, there is no need for any supporting affidavit, but only the grounds for the objection need be clearly stated. However, when the objection leaves the province of law and dwells on facts of the case, the party relying on such Preliminary Objection must support same by filing an affidavit. In that respect, where a preliminary objection is raised on point of law, and relevant facts upon which the objection is based are before the court, there is no need for additional affidavit evidence to be filed. It is only where there are conflicting assertions as to any fact relating to the objection, or where the facts are not before the court; that such an objection ought to be supported by an affidavit which would ensure that all relevant materials are placed before the court for a proper determination of the objection.
See Amah V. Nwankwo (2007) 12 N.W.L.R. (Pt. 1049) P. 552 at P. 578: A.G. Federation V. A.N.P.P. (2003) 18 N.W.L.R. (Pt.851) P. 182 at P. 207 Paras A-D; and Odeniran V. N.P.A. (2004) 7 N.W.L.R. (Pt. 872) P. 230. My understanding of the law from the authorities cited above is that, a Preliminary Objection need not be supported by an affidavit so long as enough material is placed before the court on which it can judiciously pronounce on the Preliminary Objection.”
May I now consider the merit or otherwise of the instant Objection. The main grouse of the Defendant is that since the Complaint in the instant suit was neither signed by the Claimant nor his counsel, the suit was not commenced by due process of law, and same ought to either be dismissed or struck out. Exhibit ‘A’ annexed to the Notice of Preliminary Objection is a CTC of the Complaint filed in this suit on the 27th of November, 2015.
I must state from the onset that, the Complaint being the initiating/originating process is the foundation of the case, and so must be in proper form in order to solidly support the case of the Claimant. Where however the foundation is built on a ‘sinking sand’ rather than a ‘solid rock’, the case is bound to collapse as it cannot withstand any legal challenge to its competence. No one can put something on nothing and expect it to stay. Macfoy V. U.A.C. (1962) AC 152.
Having looked at exhibit ‘A’ vis-a-vis the Complaint filed on the 27th of November, 2015, there is no doubt that same was neither signed by the Claimant nor his counsel. In any case, the Claimant has not denied the fact that the said Originating Process was not signed as required by law. The learned Claimant’s counsel is only urging the court to treat the failure to sign the Complaint as an irregularity relying on the provisions of Order 5 Rule 1 of the Rules of Court 2017.
I do not think this is an appropriate circumstance to invoke the provisions of Order 5 of the Rules of Court in treating the failure in the instant suit which to my mind is a fundamental vice that goes to the very root/foundation of the case as well as the jurisdictional competence of the court to entertain the suit as a mere irregularity.
Order 6 Rule 1(2) of the Rules of this court requires that each copy of any originating process shall be signed by either the Claimant or his Legal Practitioner.
The Objection which relates to the competence of the instant originating process goes to the jurisdiction of this court to entertain this suit, and where the court lacks jurisdiction, it cannot proceed to hear the case as doing so will only amount to an exercise in futility and waste of precious judicial time. See Mr. Augustine Arueze and Others V. Chief Mike A. Nwaukoni (2018) LPELR-46352(SC), and Saka Buraimoh V Tunde Alejo (2014) LPELR-23203(CA).
In the case of Dr. Tunji Braithwaite V. Skye Bank Plc (2012) LPELR-15532, the Supreme Court per Galadima (JSC) stated thus on the status of an incompetent Originating Process:
“This court in plethora of cases has held that the validity of originating processes in a proceeding before a court is sine quo non, an indispensable condition, necessary for the competence of the suit and indeed proceeding initiated by such processes. This case at hand is caught by one of the principles enunciated in the case of MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374; (1962) 2 SCNLR 341. It is on the competence of a court and this borders on jurisdiction. The principle stated in that case is as follows: “The case comes up before a court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” See also Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 521, and S.L.B. Consortium Ltd V. NNPC (2011) 9 NWLR (Pt. 1252) 317.
In the circumstance, I hold that the Complaint being the initiating process in the instant suit having not been signed by either the Claimant or his legal practitioner as required by law is a fundamental defect that robs the court of the jurisdiction to hear and determine this suit. The said Complaint is incompetent and the suit having not been commenced by due process of law is bound to fail.
In the final result, the Notice of Preliminary Objection succeeds, and the instant suit having not been initiated by due process of law is hereby struck out.
I make no order as to cost.
Ruling is entered accordingly.
Hon. Justice P. I. Hamman