IN THE NATIONAL INDUSTRIAL COURT
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HER LORDSHIP HON. JUSTICE O. Y. ANUWE
SUIT NO: NICN/OW/47/2015
Mr. Smart Ugbonta ] CLAIMANT
National Pension Commission ANOR ] DEFENDANT
P. E. Chima for the Claimant/Respondent
C. J. Nze for the 1st Defendant/Applicant
On 22 June 2015, the Claimant filed this suit via a Complaint in which he sought the following reliefs: 1.A declaration of Court that the Claimant is qualified to be paid gratuity and monthly pensions having met the minimum credit months of contribution while in service. 2.An order of Court for the Defendants to pay to the Claimant the sum of N9,058,218.48 being his due from the Defendants under the scheme. 3.21% interest on the judgment sum from the date of judgment until the judgment sum is liquidated. The complaint was filed with other accompanying processes such as the: Statement of Claim, Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on. These originating processes were served on the defendants. The 2nd Defendant entered a conditional appearance on 20th October 2015, and on 12th November 2015, filed a Notice of Preliminary Objection which was moved by the 1st Defendants/Applicants’ Counsel on 26th January 2016. In Counsel’s Preliminary Objection, an order was sought for the striking out or dismissing this suit on the ground that this court lacks the jurisdiction and/or is incompetent to entertain same. The grounds of objection are as follows: 1.The action as constituted is premature as the claimant did not exhaust the internal remedies available to him before instituting the present action. 2. The claimant's suit as constituted disclosed no cause of action. 3.By the National Industrial Court of Nigeria Practice Direction, 2012, the filing fees payable for claim of N100,000.00 and above is N25,000.00. In this case the Claimant did not pay the appropriate fees required of him to pay. 4.Payment of filing fees for a matter or process by a party is a precondition for a Court to adjudicate over it. If a party fails or neglects to pay for any relief, a court jurisdiction to hear it fizzles out. 5.All the Court processes prepared and filed by the claimants negate the provisions of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 in that they do not bear the stamp of any legal practitioner as issued by the Nigerian Bar Association and are therefore invalid for been improperly filed. This application was supported with an affidavit of 12 paragraphs (to which a copy of the THIS DAY NEWSPAPER publication issued by the General Secretary of the Nigeria Bar Association was annexed as “Exhibit A” and a Copy of a directive of the Chief Justice of Nigeria annexed as “Exhibit B) deposed to by Amaka Duru, the Litigation Secretary in the Defendant/Applicant’s Law Office. In the accompanying written address, Learned Counsel for the 2nd Defendant/Applicant distilled one issue for determination, as follows: Whether this Honourable Court has the jurisdiction to hear and determine this case as presently constituted. He proceeded to argue this issue from four angles to wit: i.Whether the Claimant's suit as presented discloses any cause of action. ii.Whether this action, as constituted, is premature as the Claimant did not exhaust the internal remedies available to him before filing the instant action. iii.Whether Non-payment of appropriate filing fees is fundamental in respect of originating court processes? iv.Whether any process of Court filed without the stamp of the Nigerian Bar Association is not contrary to Rule 10 of the Rules of Professional Conduct, 2007 and therefore invalid. With respect to the first angle, counsel submitted that the claimant has not disclosed any cause of action in this suit. A cause of action means a suit with some chances of success. He referred to the following cases of: 1.PINCO CONST. CO. vs. VEEPEE IND. LTD (2005) 9 NWLR (Pt. 929) 85 at 96; 2.CHEVRON (NIG) LTD vs. L.D (NIG) LTD (2007) 16 NWLR (Pt. 1059) 168 at 179 3.SPDC vs. X. M FED. LTD (2006) 16 NWLR (Pt. 1004) 189 at 200-201 Counsel relied on the case of NRN LTD vs. ARISON TRADING & ENGR. CO. LTD (2006) All FWLR (Pt. 326) 377 to submit that a cause of action matures and arises on a date or from the time when a breach of any duty or act occurs, which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action. Relying on the above, it is the contention of Counsel that the Claimant/Respondent’s originating complaint and reliefs have failed to disclose any cause of action against the 2nd Defendant/Applicant. Counsel also cited the case of S.P.D.C. LTD vs. NWAWKA (2006) 6 NWLR (Pt. 815) 192 at 207, 208 where it was held that: "It is not the law that where an employee conceives that his contract of employment may be affected adversely due to irregular or illegal conduct of the employer or irregular manner of recruitment which may directly or indirectly affect him, he has a cause of action regardless of whether the terms of his contract of employment, including a term as to termination of the contract, have not been breached. There must be a distinction between a performance of civic duty and an enforcement of private rights. The instant case arose as a result of a total misconception of the respondent's rights under his contract of employment with the 1st appellant.” He submitted that in the instant case, the Claimant's suit was based on misconceptions regarding the acts of the 2nd Defendant/Applicant and the Claimant has failed to disclose any cause of action as none has accrued at the time the Claimant instituted this action. Furthermore, Counsel argued that by the National Industrial Court of Nigeria Practice Direction 2012, the filing fees payable for claims of N100,000 and above is Twenty-Five Thousand Naira (N25,000). Payment of Court filing fees for a matter or process by a party is a precondition for a court to adjudicate over it. In the event a party fails, refuses and/or neglects to pay for any relief claimed, a court cannot validly assume jurisdiction. He referred to AJUWA vs. S.P.D.C (NIG) LTD. (2008) 10 NWLR (Pt. 1094) at 92, where the Court of Appeal held that it is the duty of party to pay the appropriate fees to enable the Court’s function commence. The process will be improper or incompetent or invalid and the court will equally be incompetent to deal with the process if the payment is not made. Counsel quoted verbatim the reasoning of the Court of Appeal in SEVEN-UP BOTTLING CO. LTD vs. YAHAYA (2001) 4 NWLR (Pt. 702) 47 thus: “Where there is requirement for payment of filing fees to set a process in motion and the payment is not made, the process will be improper or incompetent and the court will be equally incompetent to deal with it…The requirement to pay a filing fee is not only mandatory but also fundamental to the proceedings. It is a condition precedent to the filing of a valid claim before the court. Therefore non-compliance or failure goes to the root of the matter. In the instant case, the notice of appeal is incompetent, the filing fees having not been paid. The appeal cannot be said to be properly brought when no filing fees had been paid nor step or steps taken to have the omission rectified.” He submitted that in the present case, the Claimant deliberately paid the sum of N5,970.00 (Five Thousand Nine Hundred and Seventy Naira) only as filing fees, which is not the appropriate fees to be paid in this suit as indicated in the National Industrial Court of Nigeria Practice Direction, 2012. Again, it is the argument of Counsel that the subject matter of this action is an internal matter between the Claimant and the Defendants, completely outside the sphere or province of this Court. This argument of Counsel is owing to the fact that according to the 2nd Defendant, the Claimant who was a contributor to the National Pension Scheme wrote the Defendants complaining about entitlements which had not been paid to him, and before the Defendants could fully sort out the Claimant's grievances, he rushed to court claiming huge sums of money against the Defendants. Counsel submitted further that the Claimant ought to allow the Defendants settle its internal matter according to their Rules before filing this action in Court. Counsel contended further, that the Claimant cannot institute an action against the Defendants in Court without first exhausting the available internal remedies. Counsel urged the court to hold that this suit is premature and the parties should settle through the internal remedies made available before an action is filed by any party. Finally, Counsel reproduced Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 which provides as follows:- 10(1)A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department or ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association. 10(2)For the purpose of this rule, "legal documents" shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinion or any similar documents. 10(3)If, without complying with the requirements of the rule, a lawyer signs or files any legal documents as defined in sub-rule(2) of this rule, and in any of the capacities mentioned in sub-ruled(l), the document so signed or filed shall be deemed not to have been properly signed or filed.” He submitted that the failure to affix the stamp or the seal of the Nigerian Bar Association neither on the complaint, statement of claim nor any other process of the Claimant filed in this suit means there are no valid processes filed by the Claimant in this suit. He referred to the Supreme Court’s recent decided appeal in ALL PROGRESSIVES CONGRESS vs. GENERAL BELLO SARKIN YAKI (unreported) Appeal No: SC/722/15 - delivered on 27th October 2015, where it was held thus: “without complying with the mandatory provision of Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 which requires a lawyer acting in his capacity as a legal practitioner, legal officer or legal adviser of any Government department or ministry or any corporation, who signs or files a legal document to affix on any such document a seal and stamp approved by the Nigerian Bar Association, the document so signed or filed shall be deemed not to have been properly signed and filed.” In conclusion, counsel urged the Court to make the following holdings: i.The action as constituted is premature as the Claimant did not exhaust the internal remedies available to him before filing the instant action. ii.The Claimant's suit as presented discloses no cause of action. iii.The Non-payment of appropriate filing fees is fundamental in respect of originating court processes. iv.Any process of Court filed without the stamp of the Nigerian Bar Association is contrary to Rule 10 of the Rules of Professional Conduct, 2007 and therefore invalid. Counsel urged Court to dismiss this suit for being incompetent and lacking in jurisdiction. In opposition, the Claimant/Respondent on the 8th day of December 2015, filed a 4-paragraph Counter Affidavit deposed to by Nnenna Ugbonta, the Claimant/Respondent's daughter, along with Exhibit CA1 being a memo regarding the enforcement of affixing of lawyer's seal on processes in this Court. Learned Counsel for the Claimant raised an issue in his written address to be considered by the Court, thus: Whether this application ought not to be dismissed. In arguing this issue, counsel submitted that this application is made mala fide and ought to be dismissed with punitive cost. The contention of the Applicant that Claimant's suit is premature, the Claimant having not exhausted the internal remedies available to him before filing this suit, and that the suit discloses no cause of action, is untrue. He argued that the facts as averred in the Claimant’s pleading disclose a sufficient cause of action. The Claimant is not a staff of the 2nd Defendant/Applicant and therefore does not know what its "internal remedies" are. Particularly, the Applicant has not exhibited any document to this application evidencing what those "internal remedies" are, so as to enable the Court know and not speculate as to whether the Applicant has exhausted them before coming to court. At this juncture, Counsel contended that the safest conclusion to be drawn by the Court is that no such "internal remedies" exist. Especially, as the Applicant's letter of 30/5/2014, which is a reply to the Claimant's letter of 8/5/2014 shows that the parties fully exhausted all "internal remedies" if any, before the Claimant's resort to litigation. This letter is part of the documents the Claimant has frontloaded in this suit. Regarding the Applicant’s submissions as regards the non-payment of appropriate filing fees by the Claimant, Counsel submitted that the Claimant is not a staff of this Court and did not determine or assess the fees he paid; he rather paid what was assessed by the registry of this Court. Any mistake of the Registry of this Court cannot be visited on the Claimant. See Order 5 Rule 1 of the National Industrial Court Rules, 2007. However, in the event that the fees as assessed and paid are not the appropriate fee, counsel contended it does not affect the competence of the suit. See the decision of the Supreme Court in AKPAJI vs. UDEMBA (2009) All FWLR 811 at 828 F-H. Counsel argued that contrary to the Applicant's contention, the Claimant's Exhibit CA1 clearly shows that implementation of the directives of the Chief Justice of Nigeria by this Court came into force on 30/10/2015. The Claimant's suit/process was not caught up by the directive having been filed in June, 2015. He urged the Court to view the present application as a delay tactic, resolve the issue argued in this application in favour of the Claimant, and dismiss this application. Court’s Decision The 2nd Defendant has brought this Notice of Preliminary Objection and has urged this court to pronounce the originating Complaint to be incompetent and to consequently dismiss the Claimant’s suit. The grounds on which the 2nd Defendant sought this court to dismiss the suit are that: i.The action is premature because the claimant did not exhaust the internal remedies available to him before filing the suit, ii.The claimant's suit discloses no cause of action, iii.The claimant did not pay appropriate filing fees for the claim, and iv.The complaint is invalid because it does not have counsel’s NBA stamp affixed to it. Having considered the grounds of the Notice of Preliminary Objection together with the depositions in the respective affidavits of the parties and also having read the submissions of the counsels in their addresses, it is my view that the Notice of Preliminary Objection ought to be dismissed straight away so that this case can proceed to more important stages. To avoid any doubt however, I will give my reasons for dismissing the Notice of Preliminary Objection very briefly. A reading of the statement of facts of the Claimant discloses that there are triable issues in this case. I need not say more than to express what I observed from the facts. An attempt to begin an analysis of the Claimant’s cause of action against the Defendants might result into looking at the case itself. It is my view that the Claimant’s case discloses a cause of action against the Defendants. On a similar note, the 2nd Defendant has contended that the Claimant did not exhaust the internal remedies available to him before instituting this action. The 2nd Defendant failed however to tell this court what those internal remedies which the Claimant allegedly failed to exhaust or the law or regulation which mandated the exhaustion of the alleged remedies as a condition precedent to institution of suit. This ground of the Preliminary Objection is clearly speculative. In any case, where the Claimant is aggrieved with the actions or inactions of the Defendant, Section 6 (6) c of constitution permits him to approach the court. Access to court is a constitutional right and cannot be limited by any such internal remedies. On non-payment of appropriate filling fee, the 2nd Defendant’s counsel submitted that the Claimant did not pay appropriate fee for his claim and that by the Practice Direction of this court issued in 2012, the prescribed filing fee for any claim above N100,000 is N25,000. I honestly do not think the 2nd defendant’s counsel is referring to the same Practice Direction 2012 which I make use of on a daily basis. There is nowhere where it is contained that N25,000 be paid as filing fee for claims above N100,000. The fee prescribed in the Practice Direction for claims between N100,000 and N500,000 is a mere N1,500. Secondly, the claimants monetary claim in this case is not N100,000. His monetary claim is N9,058,218.48. The filing fee for claim between N5,000,000 and N10,000,000 is N5000. The assessment of the claim on the Complaint and the receipt issued to the Claimant show that the sum of N5000 was assessed for the claim and paid to this court. With regards to the ground of non-stamping of the processes, I recall the directive of the CJN to all heads of court in his Lordship’s letter dated 12th May 2015 where all courts are to implement the NBA stamp policy starting from 1st June 2015. This suit was filed on 22nd June 2015, that is, after the directive has taken effect. The Complaint does not have affixed to it the stamp of the counsel who signed the process. But does that render the complaint incompetent? The 2nd Defendant’s counsel relied on the decision of the Supreme Court delivered 27th October 2015 in Appeal No: SC/722/15 between ALL PROGRESSIVES CONGRESS vs. GENERAL BELLO SARKIN YAKI and argued that failure to affix NBA stamp on a legal document renders such legal document incompetent. With due respect to the learned counsel for the 2nd Defendant, I doubt if he read that decision to conclusion. The unanimous view of their Lordships in the Supreme Court is that failure to affix a stamp to court processes in contravention of Order 10 (1) RPC 2007 only renders the process irregular and the irregularity can be cured by simply affixing the stamp. Nwali Ngwuta JSC, who read the lead judgment, expressed the view that such a process even though signed and filed is not null and void or incompetent. He further said: “in such a case, the filing of the process can be regularised by extension of time and deeming order. In the case at hand, the process filed in breach of Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 can be saved and its signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the affixing of the stamp and seal would make the filing proper in law.” The decision of the apex court in the ALL PROGRESSIVES CONGRESS vs. GENERAL BELLO SARKIN YAKI appeal has settled the issue of the effect of non-affixing stamp to court process. None affixing of stamp does not render the process incompetent but only irregular or voidable. It was further held that “such documents are redeemable and made valid by a simple directive by the judge or the relevant authority at the time of filing the voidable document for erring counsel to affix stamp and seal as provided in Rule 10(1) Rules of Professional Conduct for Legal Practitioners 2007” Therefore, in my view, the Claimant’s complaint is not incompetent. Non-affixing of NBA stamp to the Claimant’s complaint is only an irregularity which can be corrected by a simple directive to the Claimant’s counsel to affix the approved stamp on it. Accordingly, I hereby grant leave to the Claimant’s counsel, in the interest of justice, to regularise the process by affixing the approved stamp on the Complaint. The Preliminary Objection is dismissed. No order as to cost.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe Judge.