IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
15TH DAY OF DECEMBER 2020 SUIT NO. NICN/ABJ/302/2017
MR. MARK D. OMOAKA …………………………………..………………..…………………………… CLAIMANT
SANY NIGERIA COMPANY LTD ……………………………………………………..…….……..…… DEFENDANT
1. The Claimant commenced this action vide a general form of complaint dated the 24th day of October 2017 and filed on the same day. The complaint was accompanied by statement of facts, list of witnesses, witness statement on oath, schedule of documents, and copies of the documents to be relied on at the trial.
2. The claimant as per paragraph 17 of the statement of facts is praying for:-
1. The sum of
N45,000.00 (Forty Five Thousand Naira) only being the Claimant’s salary for the month of July, 2017 which was due but unpaid before the termination of the Claimant’s employment by the Defendant.
2. The sum of
N45,000.00 (Forty Five Thousand Naira) only being the Claimant’s entitlement in lieu of one month notice, since his employment was terminated by the Defendant without notice or payment in lieu of the notice.
3. The sum of
N1,080,000.00 (One Million Eighty Thousand Naira) only being the Claimant’s Two (2) years’ salary at N45,000.00 (Forty Five Thousand Naira) only per month which is the Claimant’s entitlement having worked for more than Ten (10)years with defendant as contained in the employment contract between the Claimant and the Defendant dated 30th August, 2007.
4. The sum of
N300,000.00 (Three Hundred Thousand Naira) only being the Claimant’s current annual rent in Gusape Area, of Asokoro, which is the Claimant’s entitlement having worked for more than ten (10) years with the Defendant as contained in the employment contract between the Claimant and the Defendant dated 30th August, 2007.
5. An Order of this Honourale Court directing the Defendant to present proof of remittance, deduction of Personal Income Tax and pension made from the claimant’s salary from April, 2007 to July, 2017 and where the Defendant had failed to remit the deduction, an Order directing the Defendant to immediately remit the entire sum to the Statutory Authorities.
6. The cost of this action against the Defendant.
3. In reaction to the originating process commencing this suit, the defendant filed statement of defence on 9/10/2018, which was deemed properly filed and served by order of the court.
4. The claimant reacted to the statement of defence by filing reply to the statement of defence dated 25/1/2019 and filed on 29/1/2019, wherein he responded to the issues raised in the statement of defence.
5. The claimant testified in proof of his case as CL. documents were tendered through CL and they were admitted in evidence and marked accordingly.
6. From the statement of facts, reply to statement of defence and witness statements on oath of CL, the case put forward before the court is that CL was employed by the defendant sometimes in 2007 as a driver. Vide exhibit E, letter of termination dated 10/7/2017, the defendant terminated the appointment of CL for misconduct after unsatisfactory reply to the query issued to CL. Following the disengagement of CL from service of the defendant, he caused a letter to be written to the defendant seeking for clarification on his appointment and payment of two years’ salary and one Month salary in lieu of notice as provided for in the contract agreement entered between the claimant and the defendant as per exhibit B1-2, for having served the defendant for over ten years. The claimant is also claiming for payment of one year rent in line with the provisions of exhibit B1-2.
7. For the defendant, the claimant is not entitled to any of the reliefs being sought by the claimant from the defendant. It is the case of the defendant that the claimant did not serve for 10 years, because the claimant was dismissed from service on 27/5/2010. Thus, the claimant was reabsorbed as a company’s driver via fresh appointment letter in year 2010, different from the purported contract agreement. The defendant averred that the purported contract agreement did not emanate from the defendant and that it was forged.
8. It was stated that the process of employment is to first issue letter of employment then followed by contract agreement. It was stated that although the claimant was dismissed for indiscipline, misconduct he was never the less paid in excess of his last salary and also payment in lieu of notice. It was stated the action of the claimant is ill conceived, unmeritorious and should be dismissed with substantial cost.
9. The counsel for the defendant in arguing in support of the case of the defendant formulated twin issues for resolution. They are:-
1. Whether the originating process in this suit is competent to invoke the jurisdiction of this honourable court.
2. Whether the complainant proved his case, in order to be entitled to judgment considering the undisputed and uncontroverted defense of the Defendant.
ARGUMENT FOR ISSUE ONE
10. In arguing issue one counsel contended that for the jurisdiction of this Honorable Court to be properly invoked the case must be commenced by due process of law. To support this submission counsel relied on the case of OKPE VS. FANMILK PLC 2017 2 NWLR (PT. 1549) 282@303 Paras. A-E; where the Supreme Court stated the above legal principle.
11. According to counsel due process of law requires that Originating Court process be signed and dated. However, the situation in this case is not the same, as the Originating Process, in this instant matter, Form 1- Complaint. For the Originating Process-Complaint, in this instant matter, to be competent to invoke the jurisdiction of this Honorable court, it must be signed by either the complainant or his lawyer and comply with the Rules of this Honorable court. See Order 2 Rule 7, Order 3 Rule 10(1) and Order 6 Rule 9 (a) & (b) of the National Industrial Court (Civil Procedure) Rules, 2017.
12. It is the contention of counsel that the Originating Process of the Complainant is neither signed by the complainant himself nor his legal practitioner and at this· stage, it cannot be withdrawn. The same Originating Process is not in compliance with the Rules of this Honorable Court.
13. On the whole the Originating Process of the complainant is incompetent, for want of signature of either the complainant or his legal practitioner. The case of Tsokwa V Ibi (2017) 10 NWLR (Pt.1574) 343, was relied upon in support of this submission. In concluding his submission counsel urged the court to strike out the incompetent claimant’s suit for lack of due process.
ARGUMENT ON ISSUE TWO
14. In arguing this issue, counsel contended that the Defendant presented only one witness- Xie Can. His evidence was clear, direct, unambiguous and uncontradicted.
15. Although the Complainant had a cross examination, the cross examination was only directed at the residence permit of the defense witness and that secondary evidence cannot be tendered in the Court. It is the contention of counsel that the evidence of Mr. Xie Can (DW1) was not challenged or discredited in any way. It is our humble submission and this Honorable Court is urged to hold that the evidence of Mr. Xie Can is established, the true and correct state of fact and also believable because the evidence was not challenged nor contradicted during cross examination. In support of this contention counsel relied on the case of MATTHEW VS. THE STATE (2018) 6 (NWLR PT.1616) 561@580 PARA. E SC. and the case of MBATA VS. AMANZE (2018) 15 NWLR PT. 1643 570@586 PARAS. A-C, where it was held that the Court has the unbridled license to act and rely on unchallenged evidence. The evidence of the defense is unchallenged and this Honorable Court is urged to rely on it. Reliance was also placed on the case of OKOH VS. NIGERIAN ARMY (2018) 6 NWLR PT. 1614 P. 176@190-191 PARAS. H-F.
16. In concluding his submission counsel urged this honorable court to dismiss the case of the complainant for want of competence.
17. The claimant on his part formulated single issue for determination, it read:
Whether from the pleading and evidence adduced before this Honorable court during trial, the Claimant has been able to prove his case and thus entitled to the reliefs sought in the Writ of Summons and the Statement facts.
18. In arguing the issue for determination counsel for the claimant contended that he joined the services of the claimant on 17/4/2007 and his employment was terminated on 10/7/2017. It is contended that the claimant has spent 10 years in the service and this made him to be entitled to payment of two years’ salary, one month salary in lieu of notice and rent for one year, as per exhibit B1-2 contract agreement of 30/8/2007.
19. Counsel contended that his salary is N45,000.00 per month x 12 x 2 will be equal to the sum of N1,080,000.00, N300,000.00 rent. According to counsel parties are bound by the agreement they entered into voluntarily.
20. Counsel contended that the refusal to pay claimant his entitlement by the defendant amount to fraud. According to counsel claimant’s employment was not dismiss but terminated. Exhibits E, I1-2 and F, refers.
21. Counsel insisted parties are bound by their agreement. Astra Industries Ltd V Nigeria Bank for commerce & Industries (1997) 1 NWLR *Pt.483) 674, National Salt Co. of Nigera Ltd V Innis Palmer (1992) 1 NWLR (Pt.218) 422, UBA V Penny Mart Ltd (1992) 5 NWLR (Pt240) 228.
22. Counsel urged the court not to accord evidential value to exhibit DW1A and exhibit DW1B because they were seriously discredited. And damaged under cross-examination. According to counsel Exhibit DW1A has no author. Exhibit DW1B the purpose of payment not stated. Counsel contended exhibits DW1A and DW1B have no evidential value.
23. In concluding his submission counsel contended that the clamant has proved his case with preponderance of evidence.
24. I have carefully considered the processes filed in this suit as well as the written and oral submissions of counsel for both parties in support of the position of their respective clients regarding the reliefs sought by the claimant.
25. The counsel for the defendant has in his final written address and oral adumbration before the court raised issue of non-signing of the originating process commencing this suit by the claimant or his counsel. This is a fundamental defect that goes to the issue of jurisdiction of the court to entertain the claimant’s case.
26. According to the counsel for the defendant the non-signing of the originating process commencing this suit has rendered the process incompetent. Counsel urged the court to strike the suit for lack of jurisdiction to entertain same.
27. Mr. Enomodu, counsel for the claimant after adopting the final written address filed on behalf of the claimant on 8/10/2020 contended that while making reference to section 254C of the Constitution of the Federal Republic of Nigeria 1999, as amended that this court has the requisite jurisdiction to entertain this suit.
28. Counsel also made reference to section 168 of the Evidence Act and submitted that presumption of regularity will come to play, and non-signing of complaint will not change the character of this suit. Counsel went on to contend that this is a court of justice and equity. The court’s duty is to ensure justice is served having heard witnesses.
29. Counsel also contended that mistake of counsel should not be visited on litigant. Counsel went on to contend that counsel for the defendant saw the irregularity from beginning and did not raise the issue, counsel has waived whatever right he has to question validity of the process commencing this suit. Counsel also contended that the raising of objection was in bad faith and it is a technicality to defeat justice.
30. As pointed out earlier the challenge to competence of originating process commencing an action is a challenge to the jurisdiction of the court to entertain the suit. The reason being that without a competence suit the court cannot exercise any jurisdiction. The importance of jurisdiction of court in the adjudication of cases cannot be over-emphasized. jurisdiction is so fundamental to a court of law and any decision taken by a court without jurisdiction is no decision at all and is subject to being nullified on appeal. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
31. The question of jurisdiction is so fundamental and without which the court operates in futility. Where the jurisdiction of a court is put to question, it becomes imperative that the controversy should be resolved for the purpose of giving life to the case in issue. Where the jurisdiction of a court is in limbo, the adjudication must be put on hold pending the determination thereof. The importance of jurisdiction cannot be underrated for purpose of litigation. See Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) 566; Opara v. Amadi (2013) 12 NWLR (Pt. 1369) 512; A.C.N. v. INEC (2013) 13 NWLR (Pt. 1370) 161; Abiec v. Kanu (2013) 13 NWLR (Pt. 1370) 69.
32. In law a suit or an action is said to have been properly before the court, when the action was commenced by use of due process of law and there is no feature to deprive court of its jurisdiction. See the case of Madukolu V Nkemdlin (supra)
33. The fundamental issue raised by the counsel for the defendant is issue of lack of franking of the initiating process by counsel for the claimant or the claimant himself. It is a requirement of the law that originating process commencing an action must be signed either by the claimant or counsel representing the claimant.
34. In the province of law, generally an unsigned document commends no judicial value or validity. A document which was not signed does not have any efficacy in law. Unsigned document is worthless and a worthless document cannot be efficacious. See Ikeli & Anor V Agber (2014) LPELR, Omega Bank Plc V O. B. C. LTD(2005) LPELR (SC).
35. I have had a hard look at the general form of complaint filed by the counsel for the claimant before the court. It is manifestly clear as the day light that neither the claimant nor his counsel has signed the originating process commencing this suit. This is a fundamental vice or omission on part of counsel and his counsel. It is never an irregularity that can be waived, nor is it within the province of mistake or inadvertence of counsel, that cannot be visited on litigant, as it is not every mistake or omission of counsel that can be regarded as inadvertence capable of being overlooked by the court.
36. Signing of originating process is sine quo non to the validity of the action, absence of which rendered the entire suit incompetent. See Omega Bank (Nig.) Plc V O. B. C. LTD (supra), see also Okafor V Okee (2013) FBN V Maiwada (2013), Jinadu V Eurmbi-Aro (20-09) 9 NWLR (Pt.1145) 55, Keystone Bank Ltd. v. J.O.A.&S. (Nig.) Ltd. .
37. From all I have been saying non-signing of the general form of complaint by the counsel or the claimant obviously has infected its genuineness and validity.
38. In view of foregoing, the objection to the competence of this suit for not having been commence by use of due process is upheld, the originating process commencing this suit having not been franked by counsel nor signed by the claimant before its filing has rendered the process incompetent and same is hereby struck out for incompetency.
39. The determination of this issue has end the life of this suit and can never breath again.
40. Notwithstanding, the above finding, this court being court of first instance, I shall proceed to determine the substantive claim of the claim so that if there is appeal the Court of Appeal will have the benefit of knowing the views of this court regarding the reliefs being sought by the claimant.
41. The case of the claimant is straight forward and uncomplicated. The claimant was employed by the defendant on 17/4/2007 and on 30/8/2007 a contract of service was entered into between the claimant and the defendant. See exhibit B1-2. On 4/7/2017, the claimant was queried for absconding with company’s vehicle. See exhibit C. Vide exhibit D1-2, dated 6/7/2017, the claimant replied the query.
42. However, dissatisfied with the reply, on 10/7/2017, the claimant’s employment was terminated by the defendant with effect from 11/7/2017. The defendant stated in the letter of termination that the claimant will on humanitarian ground be paid three months’ salary.
43. It is based on this above narrated facts that the claimant is now claiming payment of N45,000.00 being claimant’s salary for July 2017, N45,000.00 being one Month salary in lieu of notice, N1,080,000.00 being claimant’s two years’ salary at N45,000.00 in line with contract of service exhibit B1-2,N300,000.00 being rent for one year for serving defendant for 10 years and order directing defendant to present proof of remittance for personal income tax and pension from claimant’s salary from April 2007 to July 2007 and where there is no remittance the defendant to immediately remit.
44. It is clear from the reliefs being sought the claimant is not contesting the validity of termination of his employment; all the claimant is seeking is payment of his entitlement.
45. The defendant’s defence is to the effect that the claimant did not serve the defendant for 10 years, because vide exhibit DW1A the claimant was dismissed from service in 2010 and he was reabsorbed. The defendant also denied entering into contract of service with the claimant as per exhibit B1-2, the defendant tagged exhibit B1-2 as forged document.
46. I have considered the evidence and submission of counsel for both parties in respect of exhibit B1-2 and exhibit DW1A.
47. The defendant having alleged existence of authentic contract of service and claimed that exhibit B1-2 is forgery, the onus of establishing the authentic agreement lies with the defendant by production of the authentic agreement. Furthermore, the defendant should have called the General Manager that purportedly signed the contract agreement to deny and refute the forged contract.
48. In the absence of the failure of defendant to produce the original agreement and the failure to call the General Manager to testify in denial, I have no reason not believe that exhibit B1-2 is what governed the contract of service between the claimant and defendant.
49. The law is trite he who assert has the burden of proof the defendant having positively asserted existence of another agreement has the onus of establishing the said agreement. Alas! in this case the defendant has failed to live up to expectation of the law. See sections 132, 133, 134 of the Evidence Act 2011.
50. In view of my finding above the claimant’s employment is without break capable of reducing the number of years of service. I agree with the claimant he served the defendant for over ten years.
51. Looking at the content of exhibit B1-2, the claimant is entitled to two years’ salary and one year rent for retirement. In the case at hand the claimant did not retire from service his service was terminated. In the circumstances he is not qualified to benefit from exhibit B1-2. The claimant can only benefit from exhibit B1-2 if and only if he retired from service and that is not the case.
52. However, going by exhibit E letter of termination, the claimant was not given any notice. By section 11 of Labour Act having served for more than 3 years the claimant is entitled to one Month notice or payment of one Month salary in lieu of notice. Having been terminated without notice he is entitled to one Month salary in lieu of notice. I so hold.
53. On claim for July salary, the claimant was terminated with effect from 11/7/2017, as at the effective date of termination he served defendant in the month of July for only 10 days. In the circumstance he is only entitled to payment for ten days only and not one Month as claimed.
54. The defendant has vide exhibit DW1B, established that the claimant was paid the sum of N122,850.00 on 24/7/2017. According to the defendant the payment is for three month salary paid to claimant as stated in exhibit E letter of dismissal. The claimant having not denied receipt of the said amount I found that the defendant had on 24/7/2017 paid claimant the amount of money stated therein in exhibit DW1B.
55. On the whole the claimant succeeds only in respect of entitlement to payment of one Month salary in lieu of notice and salary for ten days service in July 2017.
56. However, the finding by the court that this suit is incompetent, has deprived the court of power to make any order for payment of any sum in lieu of notice and ten days salary. Even if such order is to be made with exhibit E the claimant having been paid over and above what he is entitled to, will not be entitled to any payment again.
57. This case failed for not having been commenced by due process of law same is hereby struck out for being incompetent.
58. Judgment entered accordingly.
Isaac Enamudu, Esq; for the claimant
A. D. Faruk, Esq; for the defendant.