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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE AUWAL IBRAHIM DATE: 10th February, 2016 SUIT NO.: NICN/EN/110/2015 BETWEEN: NATIONAL UNION OF ROAD TRANSPORT WORKERS=========CLAIMANT/RESPONDENTS AND ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA======DEFENDANTS/APPLICANTS REPRESENTATION: Maxwell K. Orah Esq. appeared with I. K. Eze Esq. for the Claimant. Felix E. Ipogah Esq. appeared for the Defendants. RULING The Claimant in this suit filed a Complaint against the Defendant on the 25th day of November, 2015. The reliefs sought are as follows: (a) AN Order of perpetual injunction restraining the Defendants, from interfering in the business activities of the Claimant, by trespassing in their working areas and also collecting fees from the members of the Claimant’s recognized Association. (b) A Declaration that the Claimants have the sole rights over their members and no other Association or body has the right to forcefully collect money and or collect monies from the Claimant’s Association members except ordered by a Court of competent jurisdiction. (c) A Declaration that the Defendants are not member (sic) of the Claimant and as such can not have authority over its members including collecting money or fees from them. (d) N50 Million Naira as damages against the Defendants for meddling and interfering with the business activities of the Claimants, causing a halt to its functions and a consequential loss of funds. (e) Any Other Orders as the Honourable Court may deem fit to make. The Complaint is accompanied with a Statement of Facts, list of witnesses, written statements on oath of the Claimant’s witnesses and list and copies of documents to be relied upon at trial. The Claimant equally filed a Motion on notice (undated) on the 25th day of November, 2015 whose prayer was amended by leave of court on 15th day of December, 2015 as follows: An order of Interlocutory Injunction restraining the Defendants, their Agents, privies, associates or anybody howsoever called and named acting for and on behalf of the defendants from collecting monies and interfering with all commercial vehicles in Enugu State howsoever and whatever manner couched, pending the determination of the substantive suit. The said motion is supported by an affidavit of 25 paragraphs deposed to by A.C. Asogwa (JP), the Chairman of the Claimant Union. There is also a written address accompanying the said motion on notice. Upon being served with the processes of the Claimant, the defendant entered a memorandum of Conditional Appearance dated 30th November, 2015 on the 9th of December, 2015. Filed along is a Notice of Preliminary Objection dated 30 November, 2015 but was filed on 9th December, 2015. The preliminary objection is to the effect that this Honourable Court has no jurisdiction to hear this suit and all pending applications filed by the Claimant on the ground that: a. This suit is incompetent having not been initiated by legal practitioner enrolled to the Rolls (sic) of the Supreme Court of Nigeria. b. The suit is voidable as the legal Practitioner’s Stamp/Seal required by Rule 10 of RPC is absent. The said notice of preliminary objection is supported by an affidavit of 4 paragraphs deposed to by Felix Ipogah Esq., a counsel in the law firm of the Solicitors to the Defendant. There is also a written address in support of the preliminary objection. Furthermore, the Defendant filed a Counter-affidavit to the motion on notice of the Claimant for an Interlocutory Injunction on 12th December, 2015. The said Counter-affidavit is of 4 paragraphs deposed to by Charles Ugochukwu Igwenagu, the Chairman of Enugu North of the Defendant union. There is a written address in opposition to the said motion for interlocutory injunction of the Claimant. Upon being served with the preliminary objection of the Defendant challenging the competence of this suit, the Claimant on 11th of December, 2015 filed a Counter-affidavit of 19 paragraphs deposed to by one Ikechukwu Chijoke Eze, a legal practitioner in the law firm of the Solicitors to the Claimant. The said Counter-affidavit has Exhibits A, B and C attached to it as well as a written address in support. On the 15th day of December, 2015 the parties adopted their respective written addresses. I shall start by considering the objection of the defendants to the competence of the suit filed on 30th of November, 2015. In his written address accompanying the said objection learned counsel for the Defendants formulated a single issue for determination which is whether the suit is not incompetent? On his own part, the learned claimant’s counsel in his written address in opposition to the said objection formulated and argued two issues for determination, namely, 1. Whether this Honourable Court has the jurisdiction to entertain this case bearing in mind as regards- (a) The issue of Maxwell K. Orah being a Legal Practitioner. (b) The issue of the stamp & seal as raised by the Respondent? 2. Whether the process filed by the Respondent is not incompetent bearing in mind that nobody signed the process? Having considered the processes filed as well as the arguments and submissions of learned counsel the issues for determination are as follows: 1. Whether the suit of the Claimant is incompetent? 2. Whether the processes filed by the Defendant have not been signed and therefore are incompetent? On the first issue, it the case of the Defendant that the suit of the Claimant is incompetent on the ground that the learned counsel for the Claimant signed the processes in this suit as “Barr Maxwell K. Orah”, and that this name is not on the Roll of Lawyers at the Supreme Court as having been called to the Nigerian Bar and qualified to practice law in Nigeria. The other ground of objection is that the NBA stamp was not affixed to the originating processes of the Claimant, which makes the said processes inchoate and voidable. It is the contention of the learned counsel for the Defendant that since the name Barr Maxwell K. Orah, from his research is not on the Roll of Lawyers kept at the Supreme Court of Nigeria in accordance with the Legal Practitioners Act, the suit must be incompetent and this court should dismiss same for lack of jurisdiction. In support of his contention learned counsel relied on the decisions in the cases of Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521, First Bank vs Wada (no citation given by learned Counsel), Ahmed vs Ahmed (2013) 15 NWLR (Pt. 1377) 274, Peak Merchant Bank vs NDIC (2011) 12 NWLR (Pt. 1261) 263, Onward Enterprises Ltd vs Olam International Ltd (2010) All FWLR (Pt. 531) and Melaye vs Tajudeen (2012) NWLR (Pt. 1323) 315. On the second point of the objection relating to affixing of the NBA Stamp Seal learned counsel submitted that by Rule 10 of the Rules of Professional Conduct (RPC), failure of the Claimant/Respondent to affix the NBA Stamp Seal to the Claimant’s Complaint and the Motion on Notice as required rendered the processes voidable and inchoate. He relied on the Supreme Court’s decision in the case of Gen. Bello Sarkin Yaki & Anor vs Senator Abubakar AtikuBagudu& 2 Ors (Unreported) Appeal No. SC/722/2015 decision in which was delivered on 13th day of November, 2015. On his own part, learned Claimant’s counsel submitted that by the Counter-Affidavit deposed to in opposition to the objection of the defendant, he has dislodged the said objection of the Defendant. On the failure to affix the NBA Stamp learned counsel contended that the processes have been duly stamped and Sealed in compliance with Rules and that in any event that only makes the processes voidable and not void. This means that the Court has jurisdiction to proceed with the case. He submitted that the presumption of regularity must be made in favour of the processes, relying on Section 168(1) of the Evidence Act and the decision in Onuzulike vs CSD Anambra State (1992) 3 NWLR (Pt. 233) 791 C.A. In addressing this issue, I have to point out that the case of the Defendant is focused on the name of the learned counsel for the Claimant both as used on the processes of Court as well as the name as enrolled in the Roll of Lawyers at the Supreme Court. I have to state straight away that the authorities cited especially of Okafor vs Nweke (2007), supra, by the learned counsel are to the effect that only a qualified legal practitioner whose name is enrolled in the Roll of Lawyers is qualified to practice law in Nigeria and therefore a person that has not been so enrolled cannot practice law. In the instant case, the learned defendant’s counsel is not arguing that that Barr Maxwell K. Orah is not a person called to the Nigerian Bar, but rather the name used is not found on the Roll of Lawyers. It appears that the learned defendant’s counsel was not aware of the decision of the Supreme Court in the case of Alhaji Ibrahim Hassan Dankwambo vs Jafar Abubakar & Ors (2015) LPELR-25716 (SC). In this case, which is an election Petition matter concerning the 2015 Gubernatorial Election in Gombe State, the Election Petition Tribunal held that the counsel who appeared as SAM KARGBO which is not on the Roll of Legal Practitioners cannot represent the Petitioner. This is in spite of the fact that SAM KARGBO had deposed to an affidavit showing that SAM KARGBO is the same person as SAMUEL PETER KARGBO whose name is on the Roll of Legal Practitioners. The Court of Appeal reversed the decision of the Tribunal. An appeal was filed at the Supreme Court which affirmed the decision of the Court of Appeal and dismissed the appeal. In its decision, the Supreme Court per Galadima JSC, at pages 42-44 held as follows: Courts do not give a restrictive and punitive interpretation to a statute where there is leeway that will avert such adverse consequences. I set out quite extensively, the judgment of the Court below the possibility of such adverse effect, when it held at pages 35-36 as follows: “It is restrictive and punitive interpretation of Section 2 of the LegalPractitioners Act to hold that the only person whose appearance can be countenanced by court must be the same person who signed processes and whose name appeared on the Roll as Samuel Peter Kargbo, and that the contemplation of the Legal Practitioners Act is that Counsel MUST only file processes and announce appearance only as exactly as their names appear on the Roll leaving no room for abbreviation of such a name. The argument of learned 1st Respondent Counsel that if Sam Kargbo instead of Samuel Peter Kargbo is allowed to practice law every Nigerian Lawyer called to the Bar will be allowed to jettison his name on the Roll of Lawyers and use different names or alias in different processes and proceedings is disingenuous at best. The traditional, the Bar and Bench cannot be swept off so lightly. Most lawyers drop their full names and use abbreviations of initials to announce their appearance and sign Court processes. That has always been acceptable so long as they are juristic persons who had been called to Bar. This has been settled beyond doubt by Hamzat vs Sani (2015) LPELR (2402) delivered by Supreme Court. See OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) pg. 521. The present legal names of most women lawyers who married after call to Bar are on the Roll of Legal Practitioners. Their married name is their legal name now. If argument were allowed to hold, eighty percent of processes in law courts today all over the country will be rendered incompetent. I cannot fathom how and why the Tribunal can countenance the argument of the respondents given the nature and circumstance of this case being an election petition. It is a preposterous enthronement of technicality over substantial justice. The purpose of Section 2 and Section 24 of the Legal Practitioners Act is not to exclude anyone from practicing as a Barrister and Solicitor duly enrolled to practice law before the Courts in Nigeria.” Furthermore, His Lordship Ariwoola JSC held at pages 66-70 as follows: I must say clearly, that an abbreviated name is legal and permissible. It does not cease to be a person’s name or render it to lose ist juristic personality. In other words, an abbreviation of the first name of any person whose name is on the Roll of Legal Practitioners does not render the abbreviated name to become unregistered or unknown to law as argued by the appellant. This is a different situation from the use of two names that are on the role (sic) as a Legal Practitioner’s name to file processes in court. There is no doubt that two persons or personalities cannot become, except in marriage when the Statutory law of marriage treats husband and wife of two different personalities as one as far as the relationship exists. In Amos vs Olayinka Adewunmi & Ors (2010) NWLR (Pt. 1195) 63 at 74 this Court opined as follows: “There is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simpliciter. While the name of Olujinmi and Akeredolu is a firm with some corporate existence, the name of a legal practitioner is a name qua solicitor and Advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonymous. It is clear that Olujinmi and Akeredolu is not a name of a Legal Practitioner in Nigeria…There is no such name in the roll of legal practitioners…” There is no doubt the court came to the above conclusion in that case because it was not disputed that the name Olujinmi and Akeredolu are two different names of two distinct personalities. The two names with conjunctive word cannot make it one name of a legal practitioner on the roll of Legal Practitioners. Such name cannot be found on the roll. But the name of Samuel Peter Kargbo which is on the roll remains a legal practitioner who is entitled to practice law in the Nigerian Courts by that name either with abbreviated first name or initials of his other names other than the family name-Kargbo. It cannot be said that the name “Sam Kargbo” is either fictitious or false name. I agree that it is the same name of Samuel Peter Kargbo-a legal practitioner on the roll of the Supreme Court of Nigeria. I agree entirely with the court below when at p. 2226 of the record the court, per Ogunwumiju, JCA, stated beautifully, inter alia, as follows: “…The purpose of Sections 2 and 24 of the Legal Practitioners Act is to exclude anyone from practicing as a Barrister and Solicitor who had not been called to the Bar and whose name had not been enrolled as a Solicitor and Advocate of the Supreme Court of Nigeria. There was no doubt that the counsel who appeared before the Tribunal was a Barrister and Solicitor duly enrolled to practice law before the courts in Nigeria. Counsel’s affidavit to that effect was never countered.” I cannot agree more with the Court below. The trial Tribunal was wrong to have held that the counsel to the petitioner who is the 1st respondent herein cannot practice law in Nigeria with his abbreviated name. The court below was perfectly right and (did) put the point straight. There are many Senior Legal Practitioners and judicial Officers whose first name as it appears on the roll of Legal Practitioners of the Supreme Court of Nigeria has been abbreviated as it stands today, yet that abbreviation has not robbed and could not rob them of their status as legal practitioners nor can it be said that they have contravened the Legal Practitioners Act. Many first names such as Oluwole, Olukayode, Akinlolu, Christian, Okechukwu, Joseph, Samuel, Emmanuel, Omotayo, Olajide, Oladele, Olabode appear in the Roll but today stand abbreviated as first name of legal practitioners as Wole, Olu, Akin, Chris, Okey, Joe, Sam, Emma, Tayo, Jide, Dele, Bode. Until the contrary is proved abbreviated first name or initials before family name used on documents for filing processes in court or announced as appearing for litigants remain valid and proper forever. With this clear decision of the Supreme Court on the point of use of abbreviated name to sign processes or announce appearance in court by a legal practitioner called to the Nigeria Bar, the only thing left is for the court to determine whether the learned Claimant’s Counsel was indeed called to the Bar. Looking at his Counter affidavit particularly paragraphs 5, 6, 7 and 8, as well as Exhibits A, B and C, it is clear that Maxwell Kanayochukwu Orah was called to the Nigerian Bar in 2007. The contention of the learned Defendant’s counsel that the addition of the title “Barr” has changed the name of the counsel is not of any consequence. The most important point is that it is the same Maxwell K. Orah that was called to the Bar and there is nothing before the court to contradict the Exhibits showing his call to Bar. In the circumstance I resolve the point in favour of the Claimant. On the issue of affixing of stamp, having considered the submission of counsel, it is clear to me that there is no merit in the objection, particularly as the contention of the Defendant is that the court lacks jurisdiction. The Court does not lose its jurisdiction because of the voidable point raised. In any event I have seen an NBA stamp affixed to the Complaint and subsequent processes filed by the claimant. On the 2nd issue for determination, it is the learned Claimant’s counsel submitted that the processes of the Defendant were not signed by a legal practitioner known to law. He stated that there are four names listed on the face of the process and a signature appended thereto and the court should not speculate on who signed the process. He relied on the case of Min. of Works and Transport Adamawa State