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BEFORE THEIR LORDSHIPS HON. JUSTICE M, N ESOWE - PRESIDING JUDGE HON. JUSTICE F. I. KOLA-OLALERE - JUDGE HON. JUSTICE J. T, AGBADU-FISHIM - JUDGE DATE: 20TH DECEMBER, 2010 SUIT NO: NIC/EN/04/2010 BETWEEN 1. SIR SOLOMON UZOIGWE M. C. 2. CHIEF MADU MATHEW O. C. 3. EGBO IDEMILI CELINE (MRS.) 4. AMANI AUGUSTINE 5. OMEJE LAZARUS I. 6. EKETTE ROMANUS S. 7. CHIOXE FRANCIS - CLAIMANTS AND 1. CHIEF UCHEY AGBOEZE 2. OZO NNAJI PAUL 3. CHIEF MIKE IKE ENE - DEFENDANTS REPRESENTATION Alhaji Abdulaziz C. Ogbui, for the claimants Chief M. E. Eze, for the defendants RULING The claimants in this case initiated this matter by way of compliant under Form 1 General Form of Complaint in Order 3 Rule 2 of the National Industrial Court Rules 2007. They claim the following against the defendants: 1. A declaration that the Quadrennial Enugu State Wing Conference of Delegates of the Nigeria Union of Teachers (NUT) fixed by the defendants to hold 27th to 28th April 2010 is illegal and ultra vires, and violates the constitution of Nigeria Union of Teachers. 2. A declaration that the life of the current Executive Council of the Enugu State Wing of the Nigeria Union of Teachers (NUT) will still be subsisting by 27th to 28lh of April 2010 and any election purportedly held on these dates would be illegal and unconstitutional. 3. An order declaring any such election or Delegates conference held in defiance of the constitution of the NUT as stated above illegal and a nullity. 4. An order of injunction restraining the defendants either by themselves, their agents or and servants from holding the said Enugu State NUT Wing Quadrennial Conference of delegates for the purpose of electing the Executive Council on the 27fl - 28U of April or any other time except as constitutionally provided under article 16(c)(i)(ii) of the NUT constitution which provided for time and venue of State Conference of Delegates. This complaint and other processes were received by the registrar of court on the 22" of April 2010. Upon receipt of them, the defendants, through their counsel, Chief M. E. Eze, raised a preliminary objection praying the Court to strike out this complaint for being incompetent. Their grounds for the objection are: 1. This case was originated by a complaint dated 22" April 2010 2. There are 7 claimants who jointly initiated this complaint, 3. None of the 7 claimants signed the originating process. 4. The counsel for the 7 claimants is Alh. Abdulaziz C. Ogbui. 5. Learned Counsel Alh. Abdulaziz C. Ogbui did not sign the originating process. 6. An originating process shall be signed by the claimant or his legal practitioner where the claimant sues by a legal practitioner. 7. Non-signing of the originating process renders the action incompetent. 8. When the action is incompetent the court lacks the jurisdiction to hear the case or make any order affecting the defendant. 9. The defendants shall rely on the processes filed by the claimants. Both parties agreed to argue this preliminary objection on record. Counsel to both parties filed and exchanged their written briefs of argument. While arguing in support of their application the defendants pointed out that the only issue for determination in their application is "Whether this action is competent when the complaint was not signed by either the claimants or their counsel". To them, before the judicial powers of the court can be invoked, there must be a properly constituted action before the court. If not, the court cannot exercise its powers vested on it by section 6(6)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria. It is only by filing a competent action that the judicial powers of the court can be activated. Where the action is not properly constituted, in that a condition precedent for the exercise of judicial powers of the court is not fulfilled, the court lacks the jurisdiction to entertain the suit. See Madukolu v. Nkemdilim [1962] 1 All NLR (Pt. 4) 587 at 595. To them, the law is certain that where there is non-compliance with a stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the precondition provision of die relevant law is incompetent and a court of law is for that reason lacking in jurisdictional power to entertain it. See UBA v, Ekpo [2005] FWLR (Pt. 241) 376 at 384. See also Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria [1986] 3 NWLR (Pt. 30) 617. Their position is that where an enabling law or rule of court clearly provides for a procedure to the commencement of a particular action, a party is bound to commence the action in that way prescribed by the law or rule of court. See UBA v. Ekpo, supra. See also Udeme v. Ugvi'u [1997] 3 NWLR (Pt. 491) 57 where the Court of Appeal Enugu Division put this way: It is my view that where a law places certain conditions precedent to the performance of a given act, such an act cannot be said to have been duly performed without the fulfillment of the stated conditions. The defendants pointed out that in this case a condition precedent for initiating this action was not followed because none of the claimants signed the complaint as required by Order 4 Rule 4(3) and Order 6 Rule 1(2) of the National Industrial Court Rules 2007. They contended that failure to fulfill this provision of the Rule is fatal to the case of the claimants as the case is incompetent. Therefore, this court lacks the jurisdiction to entertain it. The defendants submitted that the use of the word "shall" in Order 4 Rule 4(3) and Order 6 Rule 1(2) means it is mandatory or imperative; it is not discretionary. They cited the Supreme Court case of Ogidi v. State [2005] All FWLR (Pt. 251) 202 at 231 that quoted New Webster's Dictionary, Sixth Edition as follows: 'Shall' is used to express futurity or promise, intention or command. As used in statutes, contracts, or the like, the word 'shall' is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term 'shall' is a word of command, and one which has always or which must be given a compulsory meaning, as denoting obligation. The word in ordinary usage means 'must' and is inconsistent with the concept of discretion. Order 1 Rule 3(1) defines 'Originating Process' to mean a complaint or any other court processes by which a suit is initiated. They submit that once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce. They pointed out that in some cases the court can raise objection on its own motion, even though the point is not raised by any of the parties. See Davis v. Mendes [2007] All FWLR (Pt. 348) 883 at 901. They stressed that it is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. See the case of NDIC v. CBN [2002] 7 NWLR (Pt 766) 272 at 295 SC per Uwaifo, JSC, citing with approval the case of Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd [1992] 5 NWLR (Pt. 244) 675. The defendants contended that objection to the jurisdiction of the court can be taken at any time depending on what materials are available. It could be taken in any of the following situations: a. On the basis of the statement of claims; or b. On the basis of the evidence received; or c. By a motion supported by affidavit given the full facts upon which reliance is placed; or d. On the face of the writ of summons, where appropriate as to the capacity in which action was being brought, or against who action is brought. See NDIC v. CBN [2002] 7 NWLR (Pt. 766) 272 at 295. They submitted that once the issue of jurisdiction is raised in a suit the court must not give an order in the suit affecting the defendant until that issue is settled. See NDIC v. CBN, supra, at 292. The defendants went on to submit that in interpreting sub-paragraph 4(3)(b) of the 1st Schedule to the Electoral Act 2002, which is inpari materia with Order 4 Rule 1 and Order 6 Rule 1(2) of the National Industrial Court Rules 2007, Fabiyi, JCA (as he then was) in Nwancho v. Elem [2004] All FWLR (Pt. 225) 93 at 104 paragraphs E - G said: It appears to me that the appellant failed to accede to the required condition precedent for initiating his petition. The Tribunal rightly struck out the petition for failure to sign or authenticate the petition...To put bluntly, the petition was rightly struck out as it was not initiated by due process of law. Refer to Madukolu v. Nkzmdilim [1962] 2 SCNLR 341. The appellant put himself in a fix, as it were. For a Tribunal or Court to assume and exercise jurisdiction in a matter before it, the matter must be initiated with due process of law and upon any fulfillment of any condition precedent to the exercise of jurisdiction. They pointed out that the court in Nwancho 's case, supra, held further that a misdeed that goes to the root of a petition such as one that was not signed by the petitioner or solicitor, it is just too bad. This is because an unsigned document is no document at all. See Auman Nig. Ltd v. Leventis Motors Nig. Ltd [1990] 5 NWLR (Pt. 1510) 458 at 588. In any event, such a petition is a non-starter. The defendants then urged the court to hold, as in Nwancho 's case, that the complaint is a non-starter and consequently, the court cannot use same to sustain an action. They urged tiie court to strike out this complaint or action since it is incompetent for failure to comply with the Rules of this court. Responding to the preliminary objection, the claimants, through their counsel, Alhaji Abdulaziz C. Ogbui, pointed out that the notice of preliminary objection is not competent as it does not meet the requirement of the provisions of Order 5(2) sic (Order 5 Rule 2(2)) of the National Industrial Court Rules 2007 which provides that the application may be brought by summons or notice of motion. The preliminary objection before the court was neither brought by motion nor summons; therefore, it is incompetent. Alhaji Ogbui opined that the defendants' counsel cannot in law exercise liberty to allude to facts in issue without bringing them in as an affidavit in support of his application. This is because while the counsel is presumed to be a master of the law, he cannot be so presumed in respect of the facts since he is not a party to the suit. He, therefore, urged the court to strike out the preliminary o ejection for not complying with the provisions of the rules aforesaid. In the alternative, the claimants' counsel identified that the issue for determination is whether the failure of either the claimants or their counsel to sign the originating process renders the suit incompetent and robs this court of its jurisdiction to determine the case on merit. To them the answer is in the negative. That originating process as provided in Order 1 Rule 3(2) means a complaint or any other court process by which a suit is initiated. They went on to state that this complaint is 'FORM 1' in the Rules which is a court Form that is filled with the guide of the registrar of the court. Order 3 Rule 7, for instance, states that 'where a claimant fails to comply with Rule 2, 3, 4 or 5 of this order, as the case may be, his or her originating process shall not be accepted for filing by the registry. The claimants pointed out that the registrar of the court is the ultimate guide for a complainant or counsel filing a process in court. This is because he draws the attention of the complainant or his counsel to what is to be signed or written on the complaint or originating process. That Order 4 Rule (3) stales that 'An originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner', the Rule does not state what happens on failure of either the claimants or their counsel to sign the originating process. Unlike Order 3 Rule 7 which states that the originating process shall not be accepted for filing by the registrar. They submitted that this suit is competent, the registrar of this court having read the complaint and endorsed at the foot of it his signature certifying it. They submitted also that if the court registrar, before sealing the complaint, did not observe that neither the complainants nor their counsel signed the complaint, it is an irregularity which does not go to the root of the action before the court. To them, Order 5 Rule 1 of the National Industrial Court Rules 2007 has provided a solution to such irregularities. They submitted that in such matter of discretion, the court will always avoid undue technicalities in such a way that the matter is treated on its merit. See the Supreme Court case of Duke v. Akpabuyo Local Government [2005] 24 NSCQR 401 at 411 in which Pats-Acholonu, JSC (of the blessed memory) defined irregularity as follows:- The term 'irregularity' in respect of procedures, is most often construed by the court to denote something not being fundamentally tainting or besmirching a proceeding as to render it invalid or a nullity, id est, it is curable. They urged the court in the circumstance to follow Order 5 Rule 1 and treat the failure of the complainants or their counsel to sign the originating process as an irregularity which does not affect the competence of the suit. After all, the defendants have not shown that the non-compliance could cause a miscarriage of justice in this case. See Shuaib v. Nigeria Arab Bank Ltd [1998] 4 SC 180 at 196 - 197. Neither have they shown that they would be in any way misled or their case worsened by that non-compliance. That this was why the defendants took steps to file a motion on notice dated 11/6/2010 to regularize their processes. The claimants went on to state that assuming that at the time the defendants filed their motion on notice they did not discover the irregularity, but after filing it they discovered the irregularity, they did not discontinue the said motion on notice dated 11/6/2010 to regularize their court processes already filed out of time, The claimants opined that if the defendants had withdrawn that motion, it would have shown their good faith. What the defendants have done is approbating and reprobating at the same time which is not allowed in our courts. The claimants analyzed further that since the defendants did not discontinue their motion to regularize their processes which they filed out of time and moved the same motion on 23/6/2010, they have waived their right to complain about the irregularity, having taken fresh steps in the proceedings after becoming aware of the irregularity. See Order 5 Rule 2(1) in that respect. See also Dule v. Akpabuyo Local Government, supra, at 411 - 413 and 424, Hope Democratic Party v. INEC. [2009] 37 NSCQR (Pt. II) 919 at 958 - 959 and NACB Ltd v. Salems Farm Ltd [2006] All FWLR(Pt. 320) 1174 at 1187 paras A-D. The claimants submitted that at most what the court should do is to direct them to sign the originating summons before the court in line with Order 5 Rule 1 of the National Industrial Court Rules 2007 and the defendants would lose nothing. They went on to state that the defendants were not misled after all and that their counsel, Alh. Abdulaziz C. Ogbui, signed the statement of facts, lists of documents and witnesses filed in court. It is the same counsel that the defendants routed all their processes: motion dated 11/6/2010, counter-affidavit of 11/6/2010 and unconditional memorandum of appearance of 11/6/2010 for service on the claimants. The claimants submitted that the defendants' arguments are out of context and the authorities cited do not apply to this case. To them there is no condition precedent the claimants are expected to follow before filing a suit. The wrong complained of is only a failure to sign the originating process, which is not about applying a wrong procedure. The claimants submitted that the court ought not to punish them for failure of the registrar of the court or their counsel to show them the spot to sign on the originating process because the counsel signed other processes in court. They submitted that 'shall' does not always convey imperativeness in all situations when used in statutes, not to talk of rules of court which are not statutes but subsidiary legislation. See Dule v. Akpabuyo Local Government, supra, Ogidi v. State [2005] All FWLR (Pt. 251) 202 at 231 and Broad Bank Nig. Ltd v. Alhaji Olayiwola & Sons Ltd [2005] All FWLR (Pt. 251) 236 at 251 and Nwankwo v. Ekem [2004] All FWLR (Pt. 225); [2004] 13 WRN 150. To the claimants, Order 4 Rule 4(3) of the National Industrial court Rules 2007 is a mere rule of court that Order 5 Rule 1 could cure its non-compliance. Therefore, the non-compliance may be treated as an irregularity. They further submitted that what the defendants would have done was merely to point out the omission to sign the originating process and expect the court to direct the claimants or ;heir counsel to sign same instead of making a heavy wind of it. They urged the court to dismiss the preliminary objection to its jurisdiction as the preliminary objection lacks merit. In their reply on points of law, the defendants submitted that their preliminary objection is against jurisciction of the trial court. The application can, therefore, be brought by any of the following methods: (a) On the basis of the statement of claims; or (b) On the basis of evidence received; or – (c) By a motion supported by affidavit giving the full facts upon which reliance is placed; or (d) On the face of the writ of summons, where appropriate, as to the capacity in which action was brought, or against whom the action was brought. See Arjay Ltd v. Airline Management Support Ltd [2003] 7 NWLR (Pt. 820) 577, 625 - 626. They submitted that once there are sufficient materials before the court to enable the court determine the issue, it is immaterial that no motion with an affidavit in support or summons is fielded. The learned counsel for the defendants submitted that it is now trite law that where there are materials before the court upon which the application can be determined, there is no further need to file an affidavit before reference could be made to those facts. See Royal Exchange Assurance (Nig) Ltd v. Aswani Textile Industries Ltd [1992] 2 SCNJ 346 at 355. Counsel to the defendants submitted that non-signing of the complaint by either the claimants or their counsel means that there was no valid complaint before the registrar which he can seal and endorse. The law is trite that a document that is not signed is void and of no effect. See Omega Bank (Nig) Plc v. OBC Ltd [2005] FWLR (Pt. 249) 1964 at 1994 where the Supreme Court per Tobi, JSC said: "a document which is not signed does not have any efficacy in law". Also the Court of Appeal Port Harcourt Division in A.G Abia State v. Agbaranya [1999] 6 NWLR (Pt. 607) 362 at 371 said, 'an unsigned document is worthless and void'. The counsel to the defendants submitted that the sealing and certification of the complaint by the court registrar cannot breathe life into a void document and that a void document is not one of such procedural irregularities that can be cured by Order 5 Rule 1. He then submitted that a void document cannot be saved by court's discretion. Therefore, the case of Dule v. Akpabuyo Local Government [2005] 24 NSCQR 401 at 411 extensively quoted and relied upon by learned counsel for the claimants is inapplicable. The Supreme Court in Mobil Producing Nigeria Unlimited v. Monokpo [2003] 12 SCNJ 206 at 256 per Tobi JSC succinctly put the issue beyond controversy when the Court said: Non-compliance with the rules which affects the very foundation or props of the case cannot be treated by the courts as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then it is impossible to salvage the proceedings in favour of the party in blunder and no amount of waiver by the party can be of any assistance to the adverse party. The defendants urged the court to hold that failure to sign the complaint renders the entire complaint incompetent as it goes beyond procedural irregularity. There is no question of the defendants not being misled by the non-signing of the complaint. The defendants went on to contend opined that the signing of the other processes which are rooted on the complaint does not cure the defect. This is because one cannot put something on nothing and expect it to stand. The defendants submitted that neither of the parties nor the court can by acquiescence confer jurisdiction on the court where none exists. In other words, the doctrine of waiver does'not apply when the issue of the jurisdiction of the court is involved. See Mobil Producing Nigeria Unlimited v, Monokpo [2003] 12 SCNJ 206 at 256 - 257. Therefore, the case of Shuaib v. Nigeria Arab Bank Ltd [1998] 4 SC 180 at 196 - 197 and Hope Democratic Party v. INEC [2009] 37 NSCQR (Pt. II) 919 at 958 - 959; NACB Ltd v. Salems Farm Ltd [2006] All FWLR (Pt. 320) 117-1 at 1187 cited on the issue of waiver do not avail the claimants. The defendants submitted that the court registrar is in no way at fault. The duties of the registrar are to seal and certify the complaint. The registrar perfectly did his job as required by the provisions of Order 3 Rule 1, Order 6 Rule 1 (2) and Rule 2 of the National Industrial Court Rules 2007. To the defendants the provision of Order 3 Rule 7 is limited in scope. It does not extend to the provisions of Order 4 Rule 4(3) and Order 6 Rule 1(2). It is limited only to failure to comply with the requirements of Order 3 Rules 2, 3, 4 or 5 of the NIC Rules 2007. The defendants submitted that where the error in question is attributable to the claimants and the counsel, the principle of the sin of counsel not visited on client does not apply. See Okotcha v. Herwa Limited [2000] 15 NWLR (Pt. 690) 249 at 257. The defendants then urged the court to hold that failure to sign the complaint renders the entire complaint incompetent as it goes beyond procedural irregularity. We have carefully gone through the processes before the court particularly the originating processes, the preliminary objection and the written arguments of both parties on the preliminary objection in this case. By way of remarks we wish to point out that the claimants' written address was marred with typographical and grammatical errors which counsel could easily have corrected if the process was properly proofread. We hope that counsel will ensure that he guards against such errors in future. Both parties agreed in their submissions that the crux of this application is whether this action is competent when the complaint was not signed by either the claimants or their counsel. In other words, whether the failure of either the claimants or their counsel to sign the complaint renders the suit incompetent and as such robs this court of its jurisdiction to hear and determine the case. A look at the case file indicates that the complaint was not signed; but the statement of facts, the list of witnesses and the list of documents to be relied upon at the trial were all signed. The case of the defendants is that in not signing the complaint, the claimants have breached Order 4 Rule 4(3) of the NIC Rules 2007. The question that arises, therefore, is whether there is actually a compulsion to sign the complaint; and if so whether the failure to so sign is fatal to the case in terms of the jurisdiction of this court to hear and determine it. Order 4 Rule 4(3) of the NIC Rules provides that - An originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner. Order 1 Rule 3(2) then defines an 'originating process' as 'a complaint or any other court processes by which a suit is initiated'. Now Order 3 Rule 4 indicates that the complaint shall be accompanied by a statement of facts establishing the cause of action, copies of every document to be relied upon at the trial, and the list of witnesses to be called. The cumulative effect of all these provisions is that the originating process is made up of all these processes. The complaint is not an isolated document independent of all the others. On this basis, this court has held in previous cases that by the definition of 'originating processes', the complaint as per Form 1, the statement of facts or claims, the list of witnesses to be called and the list of documents to be relied upon a': the trial all constitute originating processes. See this court's decision in Adedoyin Olayinka & 5 ors v. Wema Bank Pic unreported Suit No. NIC/6/2008 the ruling of which was delivered on May, 2009. The question that presently arises, therefore, is if all these processes are signed as enjoined by the Rules of Court with only the complaint being the exception, has the claimant not satisfied the requirements of the Rules? We think so. In any case, it must be noted that the complaint as per the pro forma Form 1 in the NIC Rules at pages B418 - B420 does not even have anywhere on the form indicating that the claimant or his/her counsel should sign. We do not, therefore, think that the claimant or his counsel has a duty to sign the complaint itself. Once the statement of facts, the list of documents and the list of witnesses to be called at the trial are signed, the requirement of Order 4 Rule 4(3) is met. For all these reasons, we hold that the preliminary objection of the defendants lacks merit and is hereby dismissed. We make no order as to cost. The matter shall, therefore, proceed to trial. Ruling is entered accordingly. Hon. Justice M. N. Esowe Presiding Judge Hon. Justice F. I. Kola-Olalere Hon. Justice Agbadu-Fishim Judge Judge