IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA.
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
25TH DAY OF JUNE 2019 SUIT NO. NICN/LKJ/17/2018
Mr. Adamu Moses claimant/applicant
Daily Need Distributors Limited defendant/respondent.
Emeje, Aruwa, Esq; for the claimant
M. O. Ehiagwina, Esq; for the defendant
1. This deals with an application dated 8/11/18 and filed on the same day. The application was brought by the defendant pursuant to Order 3 Rule 10(c) 1, Order 4 Rule 4 (3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the court. The application is praying for:-
An order of this Honourable court striking out the claimant’s complaint against the defendant for being incompetent and baseless.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstance.
2. The grounds for this application were given as follows:-
I. The application touches on issue of jurisdiction.
II. Format of complaint is a fundamental issue.
III. This court has the power to grant this application.
3. The application is supported by a 6 paragraphs affidavit sworn to by one Helen Akerele, a Litigation Secretary in the law firm of Ehiagwina & Co, (Iji Chambers) counsel representing the defendant. In the affidavit in support it was stated that the complaint was not endorsed by the legal practitioner representing the claimant. A written address was also filed along with the motion on notice.
4. M. O. Ehigwina, Esq; counsel for the defendant in his oral submission relied on all the paragraphs of the affidavit in support. Counsel also adopted the written address as his argument. In the written address a sole issue was formulated for determination, to wit;
‘‘Whether the claimant’s complaint not being endorsed as required by law is competent before this Honourable Court.’’
5. In arguing the sole issue for determination, counsel contended that the claimant’s complaint as presently constituted is incompetent and baseless and liable to be struck out. Counsel refers to Order 3 Rule 10 (c) and Order 4 Rule 4(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and submitted that the rules of court requires that a complaint for filing before this honourable Court must be signed by the party/claimant or by his legal practitioner if he is suing through a counsel.
6. According to counsel total compliance with the rules of the court and provisions of the law guiding the court, in respect of originating process is mandatory. It is also contended by counsel that compliance with rules of court and the laws regulating the procedures confers jurisdiction on the court in any suit. On this contention counsel relied on the cases of OKARIKA V SAMUEL (2013) ALL FWLR (PT.706) 489 and MADUKOLU V NKEMDLIM (1962) 1 ALL NLR 587. Counsel argued that from these authorities the claimant’s complaint is manifestly defective and not just non-compliance and the only justice this Honourable court will do is to strike it out to prevent the defendant/applicant from further embarrassment or put to unnecessary expenses by the claimant.
7. In reaction to the application, the claimant with the leave of court granted on 23/3/19 filed a 9 paragraphs counter-affidavit and a written address in opposition to the claimant’s application. In the counter affidavit it was stated that the claimant’s application for striking out was brought after the expiration of 7 days from the date of receipt of the originating process. It was also stated that all other processes for the hearing of this suit have been filed. Therefore, it is not in the interest of justice to strike out this suit at this stage.
8. Emeje Aruwa, Esq; counsel for the claimant in adumbration relied on all the depositions in the counter-affidavit and adopted the written address filed along with it as his argument. In the written address a single issues was identified as the issue for resolution. To wit;
‘‘Whether this application has merit.’’
9. Counsel began his argument by admitting that the complaint in the case at hand was signed by the Registrar of the court. Counsel argued that taking into consideration the facts of this case and the rules of this court the omission does not suffice for purposes of striking out of this suit. This submission was based on the provision of Order 3 Rule 21 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, which provides that where a claimant fails to comply with rules 9 and 10 of order 3, the defendant may file a motion on notice challenging the competence of the action filed by the claimant. Such notice shall be filed within 7 working days from the date of receipt of the originating process and shall state the grounds of incompetence in the supporting affidavit. According to counsel the provision of Order 3 Rule 10 are not sacrosanct. For any application challenging the validity of the originating process must be made within 7 days of receipt of the originating process. Counsel contended that in the instant case the defendant did not file the application challenging the validity of the originating process within the time permitted by the rules. According to counsel the failure of the claimant is not justiciable.
10. It is also the contention of counsel that to strike out this suit in the circumstances of this case will amount to technicality. There is no doubt that court have departed from era of technical justice. On this contention counsel relied on the case of NISHIZAWA V JETHWANI (1984) ALL NLR 470 and OMOJU V FRN (2008) 7 NWLR (Pt.1085) 38. Counsel insisted that it is in the interest of justice for this court to waive the provision of Order 3 Rule 10 and allow this case to be heard on the merit, as this court is empowered to do so under the provisions of Order 5 of the rules of this court. Counsel urged the court to in the interest of justice hold that this application lacks merit and same be disallowed and order the proceeding to continue.
11. I have thoroughly examined the originating process commencing this suit as well as the motion on notice challenging the jurisdiction of this court to entertain this suit and the response by the claimant in opposition to the objection of the defendant. From the facts as disclosed by the processes before the court the issue calling for resolution is:
‘‘Whether the failure of the claimant or his counsel to sign the complaint commencing this suit has rendered the complaint incompetent and deprived this court of its jurisdiction to entertain the claimant’s suit.
12. Before, delving into the issue for determination, it is necessary to comment on some germane preliminary issues raised by the counsel for the claimant. The counsel for the clamant has argued to the effect that the objection to the jurisdiction of this court to hear and determine this suit on the ground of non-signing of the complaint will amount to technicality, which courts have since departed from and that the omission is considered to be an irregularity under Order 5 of the rules of this court which can be waived. Counsel also alluded to the fact that all necessary processes have been filed and the suit is ripe for hearing. This means that issues have been joined by parties and objection cannot be raised. It is further argued that the objection to the jurisdiction of the court was not filed in time as Order 3 rule 21 has provided 7 days within which an objection of this nature can be filed.
13. It pertinent to state that the objection of the defendant to the jurisdiction of this court is a fundamental one. It is not solely based on Order 3 Rule 10(c) rules of court, as counsel for the claimant is insisting. It is never based on mere irregularity as a result of violation of rules of court. It cannot also be said to be based on technicality. Counsel may have succeeded in his argument, if it is a mere irregularity that is not so fundamental. The objection in this suit is based on jurisdiction. On the issue of 7 days, the rules of court are clear and unambiguous the 7 days applies to Order 3 Rule 10(c). The provisions of Order 4 Rule 4(3) is very clear and unambiguous, it states that an Originating process shall be signed by the claimant or counsel where the claimant sues through a counsel. It is to be noted that the provisions of Order 4 Rule 4(3) is later it was made after the provisions of Order 3 Rule 10(c) of the rules of this court, as Order 4 Rule 4(3) which is a latter provisions has provided that Originating process must be signed by the claimant or his counsel, if he is suing through a counsel. The law is that where a latter provision is inconsistent with an earlier provisions of law, the legal presumption that the latter provision or the provision subsequent has modified the earlier or former provisions. See N. P. A. SUPERNUATION FUND V FASEL SERVICES LTD 2002 FWLR PT.97. In interpretation where there are two provisions that are not ad idem on the same subject matter the subsequent provision shall prevail. In the circumstance of this case it is Order 4 Rule 4(3) that is applicable more particularly when it is specific provision and not general like Order 3 rule 10(C) of the rules of this court. The law is well settled that a specific provision prevails over and above that which is general. See IBORI V OGBURU 2004 15 NWLR PT.895 154, ADEDAYO & ORS V PDP 2013 LPELR-20342(SC).
14. Jurisdiction has been variously been described as the blood, the pillar upon which the entire case before a court stands. Filing of an action in a court of law presupposes that the court has jurisdiction. But, once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. In effect there is no case before the court for adjudication and therefore parties cannot be heard on the merits of the case.
15. It is now an elementary principle of law that a Court is only competent when
a. It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and
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; and
c. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
16. Any defect in competence is fatal, for the proceedings are nullity however well conducted and decided: the defect is extrinsic to the adjudication. See Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379. See also Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. Jurisdiction is regarded as the lifeline of all adjudication and, once raised, it must be resolved first. See Hon. Bayo Adegbola v. Hon. Godwin Osiyi & 2 Ors. (2018) 4 NWLR (Pt. 1608) 1. It has been decided in a plethora of cases that jurisdiction, is the very basis on which any Court or Tribunal, including the apex Court, tries a case. It is the lifeline of all trials as a trial without jurisdiction is a nullity. In order to save time and costs and to avoid a trial of a nullity, the defendant’s preliminary objection will be determined first.
17. Having shown that the issue of jurisdiction being of a fundamental vice can be raised at any stage of the proceeding whether parties have joined issues or not, in fact it can be raised for the first time on appeal at Supreme Court as it was done in the case of LSB CONSORTIUM V. NNPC (2011) 9 NWLR (Pt. 1252) 307, it can as well be raised viva vorce or even suo motu by the court. See Senator Christiana Anyanwu v. Hon. Ogunewe & 2 Ors. (2014) 8 NWLR (Pt. 1410) 337; Chief Ujile Ngere v. Chief Job William Okuruket XIV & 3 Ors. (2014) 14 NWLR (Pt. 1417) 147. The argument of counsel for the claimant that all processes for hearing of this suit have been filed and the case is ripe for hearing is of no moment. The reason being that joining issues cannot amount to waiver of issue of jurisdiction or bar raising of issue of jurisdiction.
18. For the above reasons, I will consider the issue for determination of the defendant’s application which borders on jurisdiction. The learned counsel for the defendant has argued that the law required a complaint to be signed by the claimant or his counsel. However in the case at hand neither the claimant nor his counsel signed the originating process commencing this suit. Counsel contended that the non-signing of the complaint by the claimant or his counsel has rendered the complaint incompetent and deprived this court of jurisdiction to entertain the claims of the claimant. The counsel for the claimant in opposition submitted that there in nothing that rendered the complaint incompetent having regards to the facts of the case and the provisions of order 3 Rule 21 of the rules of this court which requires filing of an objection to complaint to be made within 7 days and this objection having not been made within 7 days has waived right to object. Counsel further submitted that the registrar of the court has signed the complaint.
19. I have in earlier part of this ruling held that Order 3 Rule 10(c) is not the relevant rule applicable rule in the case at hand. It is Order 4 Rule 4(3) that is apposite. The issue of 7 days does not arise in the circumstance of this case, as the issue in question borders on jurisdiction.
20. I have had a hard look at the complaint commencing this suit, I wish to reproduce the relevant portion of the second page of the complaint for proper appreciation. It read:-
‘‘Endorsement to be made on the complaint before issue thereof:
The claimants claim is for the following:
1. The sum of N30,000.00 monthly from the month of February 2010 to the date of the judgment of this court.
2. The sum of 5,000,000.00 ass general damage for emotional and psychological trauma caused by the defendant’s action.
3. The cost of his action.
This Complaint was issued by Emeje Aruwa, Esq of Aruwa, E. G. & Co, No. 2 Aliyu Attah Road, Lokoja Kogi State, Legal Practitioner for Mr. Yahaya Bello who resides at Lokogoma Phase 1, Lokoja, Kogi State.’’ (emphasis mine).
21. The above quoted portion of the complaint clearly shows the claims of the claimant in the complaint. The complaint was issued by Emeje Aruwa, Esq; whose address was given as E. G. & Co. No. 2 Aliyu Attah Road, Lokoja Kogi State, the counsel representing the claimant in this suit. However, it is clear from the quotation that the complaint was issued for Mr. Yahaya Bello who resides at Lokongoma Phase 1, Lokoja, Kogi State. On the face of the complaint and other processes the name of the claimant in this suit was given as Mr. Adamu Moses and not Yahaya Bello. It is apparent that the complaint was not signed by either the claimant or his counsel Mr. Emeje Aruwa. It is also clear that there is discrepancy regarding the actual name of the claimant in this suit. The complaint stated that the complaint was issue for Mr. Yahaya Bello, while the name given in the process as the claimant is Mr. Adamu Moses. This clearly has exposed the fallacy in the current process under consideration. There is need for explanation from the claimant as to the actual claimant in this suit given the state of confusion created.
22. I shall say no more on this since the objection was not based on who is the actual claimant. I rest my case here.
23. The law is now is well settled that an originating process, such as the present complaint or writ of summons or notice of appeal, must be signed by the litigating party or a legal practitioner on his behalf. See Emmanuel Okafor & 2 Ors. v. Augustine Nweke & 4 Ors. (2007) 3 SCNJ 185, (2007) 10 NWLR (Pt. 1043) 521; First Bank of Nigeria PLC v. Alhaji Salmonu Maiwada (2013) 5 NWLR (Pt. 1348) 448 and Aaron Okarika & 4 Ors. v. Isaiah Samuel & Anor. (2013) 17 NWLR (Pt. 1352) 19 at 42 43 per Peter-Odili, JSC.
24. Where a legal practitioner prepared a process filed in a Court of law, like in the case at hand the process has to be signed as follows:
a. First, the signature of counsel, which may be any contraption.
b. Secondly, the name of counsel clearly written. Thirdly, who counsel represents.
c. Fourthly, name and address of legal firm.
25. See SLB Consortium Ltd. v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt.1252) 307 at 337-338 per Rhodes-Vivour, JSC and Bank of Industry Ltd. v. Awojugbagbe Light Industries Ltd. (2018) 6 NWLR (Pt. 1615) 220 at 231.
26. It is also settled law that the mere typing of a person’s name on a process does not mean that the process has been signed by that person. See Sunday Adeneye & Anor. v. Alhaji Bukar Yaro (2013) 3 NWLR (Pt. 1342) 625 at 634 and Keystone Bank Limited v. J.O. Adebiyi & Sons Ltd (Pt. 1439) 98 at 110-112 and Cosmos Eze & 5 Ors. v. Donatus Okechukwu (2015) 10 NWLR (Pt. 1467) 307 at 320 324. The counsel in this suit though had his name written on the complaint, he never signed the complaint as required by law for its validity.
27. The rationale behind signing originating process is to authenticate the claims therein. This is so, even where the rules of court have not specifically provided that a complaint, or a writ of summons must be signed by the legal practitioner, who issues it or takes it out on behalf of a claimant. The signing of the originating process by the claimant or his counsel is to authenticate the relief specified therein. Without the signature of the claimant or his solicitor on a complaint or writ, nobody can legally be held responsible for the claim or relief endorsed therein. The claimant has in his response to this objection stated that the Registrar of the court has signed the complaint in question. I wish to say that the duty of the Registrar of this Court to issue a complaint by signing it, does not include the responsibility of making claims on behalf of the claimant, the party on whose behalf the complaint was issued. Therefore, a complaint without an authentication by the claimant or his counsel, is worthless and void ab initio. It is settled law that the content of a document can only be authenticated by its maker signing it. It is also trite that an unsigned document has no efficacy in law and it is valueless. See Ojo v. Adejobi (1978) 11 NSCC 161, Attorney-General, Abia State & 7 Ors. v. Silas O. Agharanya (1999) 6 NWLR (Pt. 607) 362 and Omega Bank (Nigeria) PLC v. O.B.C Limited (2005) 8 NWLR (Pt. 928) 547.
28. In any case, the Supreme Court has held that even if the Rules of Court have not provided for signing by a litigant or his legal practitioner, for them to be valid, originating processes such as complaint must be signed by the litigating party or his counsel before filing. See First Bank of Nigeria PLC & Anor. v. Alhaji Salmonu Maiwada (supra) at 37 per I.T. Muhammad, JSC, where the Supreme Court stated as follows:
‘’It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute thus a notice of appeal not signed by an appellant or his counsel is invalid as there is no stamp of authority or authentication.’’
29. In view of the foregoing, it is clear that the claimant does not have valid complaint to initiate his action, the lack of proper endorsement of the complaint as required by law has deprived this court of the vires to adjudicate. The law is settled that where an originating process is fundamentally defective and incompetent, as in this case, any trial based on such invalid originating process is a nullity. See Chukwudi Nnalimuo & 3 Ors. v. Sunday Elodumuo & 2 Ors (Unreported Appeal No. SC. 278/2005 delivered on 12/01/2018).
30. For the sake of emphasis, the law is settled that where a Court lacks jurisdiction to entertain a case, its proceedings are a nullity and the Court of Appeal or the Supreme Court should strike out the suit. See SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; All Progressive Grand Alliance v. Senator Christiana Anyanwu & 2 Ors. (2014) 7 NWLR (Pt. 1407) 541 and Chukwudi Nnalimuo & 3 Ors. v. Sunday Elodumuo & 2 Ors . (supra).
31. Without much ado, I resolve the sole issue in favour of the defendant against the claimant.
32. Before ending this ruling, let me say that the way and manner in which this complaint was filed, calls for the need for learned counsel to be circumspect, vigilant, efficient, patient, painstaking, professional and thorough in the preparation of legal documents and Court processes on behalf of their clients. The industry to be exerted in preparation of Court processes should not be taken so lightly or with lethargy. It is a serious professional business that must be undertaken with all sense of commitment it deserve. If one may ask, what would it have cost the legal practitioner who had spent considerable time to prepare the claims of the claimant, to have signed the complaint before filing it? The obvious answer is: absolutely nothing!
33. In view of my finding that this court lacks jurisdiction to entertain a suit commenced with a defective complaint, this suit is liable to be struck out. And is hereby accordingly struck out.
Ruling entered accordingly.