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The claimant filed a complaint dated 29th December, 2009 claiming as follows: (a) A declaration that the purported verbal termination of the claimant’s employment was wrongful, unlawful, unconstitutional and null and void and of no effect whatsoever. (b) A declaration that the defendant’s attempt to verbally terminate the employment of the claimant is invalid and as such the claimant at this present time still remains an employee of the defendant until his employment is validly terminated in writing. (c) An order commanding the defendant to reinstate the claimant to its services and pay to the claimant his full salaries, entitlements, allowances and/or benefits from the date of his purported verbal termination up to the date of judgment. (d) Alternatively, the claimant claims from the defendant the sum of Two Hundred and Nine Thousand, Three Hundred and Thirty-Seven Dollars, Seven Cents (US$209,337.07) being damages for his unlawful termination from the services of the defendant. In reaction, the defendant entered a conditional appearance on 18th May 2010 and thereafter filed a notice of preliminary objection on 23rd May 2011. The grounds of the preliminary objection are as follows:- (1) The Form of complaint is incompetent same not having been signed by the within named legal practitioner or the claimant as mandated by Order 4(4)(3) and Order 6(2) of the National Industrial Court Rules 2007. (2) The accompanying processes i.e. statement of claim, list of documents are incompetent same not having been issued or executed by a person disclosed as competent in law to execute same. (3) The said processes do not conform with the fundamental requirement of law as pronounced upon in the recent and consistent decisions of Appellate Court to wit: (i) Unreported decision of the Court of Appeal, Lagos Division in Suit No. CA/L/572/05 between Peak Merchant Bank Ltd v. Nigeria Deposit Insurance Corporation dated 14th May, 2010. (ii) Okafor v. Nweke [2007] 3 SC (Pt. II) 55. (iii) Ogundele & anor v. Agiri & anor [2009] 12 SC (Pt. 1) 135. (iv) Oketade v. Adewunmi & 4 ors [2010] 2 – 3 SC (Pt. 1) 140. (4) The processes are an abuse of the process of court. The defendant also filed a written address dated 23rd May 2011 in support of the notice of preliminary objection. In the said written address, the defendant raised one issue for the determination of this court, that is, whether the originating and accompanying processes in issue are competent in law and if not what consequence should follow. Arguing the preliminary objection, the defendant submitted that in Madukolu v. Nkemdilim [1962] 1 All NLR 587, the Supreme Court held that: A court is competent when it is properly constituted as regards members and qualifications of members of the bench…, and the case comes before the court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. That a careful look at the applicable rules in question i.e. Order 4(4)(3) and Order 6(2) of the National Industrial Court Rules 2007 confirms that the condition precedent of signing the originating process is mandatory considering the use of the effective word “shall” in the rules. The defendant then reproduced the said provisions of the rules thus: Order 4(4)(3) of the National Industrial Court Rules 2007 provides – An Originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner. Order 6 (2) of the same rules provides – Each copy shall be signed by the claimant where he or she is suing in person or the Legal Practitioner and shall be certified after verification by the Registrar as being a true copy of the original process filed. To the defendant, the jurisdiction of this court can only be invoked vide a validly executed Form of Complaint i.e. (Form 1) signed by the claimant or his legal practitioner where the claimant sues through a legal practitioner as mandated by law. That having not satisfied that requirement, the complaint/claim in this case must be struck out and all other subsequent processes based on the incompetent process must suffer the same fate because one cannot place something on nothing, referring to Aiki v. Idowu [2006] 7 NWLR (Pt. 984) 47 at 65 where the Court of Appeal held as follows: Was the Court below correct in law when it expunged the amended statement of defence of the appellant from its records merely on the ground that same was not signed by the learned counsel for the appellant?…The appellant has stated in his brief that the omission to sign the amended statement of defence of the appellant is the fault of counsel and that it is settled in law that an omission or negligence of counsel should not be visited on the litigant. Reliance was placed on Okafor v. Bendel Newspapers Corporation [1991] 7 NWLR (Pt. 206) p. 651 at 666. This is more so when both parties have freely resorted to the use of the said amended statement of defence, counsel submitted. The learned trial Judge in his judgment observed that no leave of court was sought for and obtained with respect to the use of the said amended statement of defence and he decided to exercise his discretion and overlook that fact but he could not do the same with respect to the non-signing of that document. The learned trial Judge was absolutely right. Where a document which ought to be signed is not, its authenticity is in doubt the pleadings fall into this category of documents. To the defendant, it must be noted that the mandatory word “shall” is used in the rules of court. That the implication of the use of the word shall has been dealt with in a plethora of decisions of the appellate courts. The defendant then referred to one of such decisions in Nigeria LNG Ltd v. ADIC Ltd [1995] 8 NWLR (Pt. 416) 677at 697 where it was held that: It can no longer be disputed that the word “shall” when used in statutory provisions or rules made thereunder imports that a thing must be done and that when the negative phrase “shall not” is used it implies that something must not be done. It is in the form of a command or mandate. In Adigun v. A.G. Oyo State (No 2) [1987] 2 NWLR (Pt. 56) at 230, the word “shall” was said to be mandatory while in Udo v. The State [1988] 3 NWLR (Pt. 82) it was interpreted to mean “must. The defendant further submitted that in Kaliel v. Aliero [1999] 4 NWLR (Pt. 597) 139 at 154, it was held that: In considering the importance of the section the lower tribunal rightly adverted its mind to the import of the word shall as severally underlined above and came to the conclusion that it had no discretion to vary the provisions of the Decree No. 3 which compels joinder of all necessary parties. It is settled law that when the word “shall” is used in a statute as in this case it is not permissive it is mandatory and the tribunal had no option but to demand compliance. See Kato v. CBN [1991] 12 SCJ…In my judgment the lower tribunal was right to strike out the petition filed by the appellant in the lower tribunal before it on 2/3/99. The defendant further contended that it is also trite that courts frown at processes signed by a person on behalf of a principal partner in chambers without the person who signed stating his name and designation for easy ascertainment of his true status. Continuing, that the Court of Appeal, Lagos Division in Appeal No: CA/L/572/05 between Peak Merchant Bank Ltd v. NDIC delivered on 14th May, 2010 held that: In the case of Okafor & ors v. Nweke & ors [2007] J.S.C (Pt. II) 55 at 64, the Supreme Court held that processes filed in court must be signed by a Legal Practitioner recognized by law. That is to say, the person signing the process must have his name in the roll of registered Legal Practitioners, who is qualified to practice as barrister and solicitor. The Supreme Court emphasized the fact that section 2(1) of the Legal Practitioners Act, Cap 207 of the law (sic) of the Federation of Nigeria 1990, did not say that what should be in the roll should be the signature of the Legal Practitioner but his name…. That the Court of Appeal also held at page 9 of the said judgment as follows:- The position of the law was re-affirmed by the Supreme Court in the recent case of Ogundele & anor v. Agiri & anor [2009] 12 SC (Pt. I) 135 at 165. In the light of the Supreme Court decision in Okafor v. Nweke (supra), I am of firm view that any person signing processes on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of registered legal practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in chambers. Nobody is saying that a junior counsel in chambers cannot sign or file process on behalf of a principal partner but his identity must be stated. It is not enough to just sign process without indicating the name and designation of such person. Continuing, the defendant reiterated the position of the Court of Appeal especially the dictum of his Lordship, Adzira Gana Mshelia JCA at page 10 of the judgment as follows: With the position taken by the Supreme Court in Okafor v. Nweke (supra) that processes must be signed by a legal practitioner known to law, the identity of the person who signed the notice of appeal on behalf of the appellant’s counsel is not irrelevant as contended by respondent’s counsel. The relevance of the disclosure of the identity is to assist the court to confirm that the person who signed the document is a legal practitioner. It is my firm view therefore that the non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of the appellant’s counsel is not a mere irregularity as contended by respondent’s counsel but a fundamental error. The notice of appeal under consideration is in the circumstance fundamentally defective and is liable to be struck out…Since there is no valid notice of appeal to activate the jurisdiction of this court to determine the appeal on merit, same would be struck out for being incompetent. In line with the above dictum, the defendant submitted that the claimant’s accompanying processes be declared incompetent. The defendant further contended that if the point is taken that the offending originating processes i.e. the form of complaint and the accompanying processes are fundamentally flawed by reason of not having been signed by the legal practitioner whose name appeared therein (Form of Complaint) and someone whose name appears on the face of the processes (accompanying processes), then the necessary consequence is that this court lacks the wherewithal to progress as there is no competent claim before the court capable of being tried. That in the case of Menakaya v. Menakaya 8 MJSC 50, the Supreme Court held that: The competence of a court or of proceedings in a court is a fundamental issue which cannot be waived even if the reason for seeking the waiver is based on the argument that it is in the interest of substantial justice. Once the incompetence is established the consent of parties cannot validate what took place under it and preclude the inevitable result of nullity. The defendant continued that the Supreme Court in a unanimous decision in Okafor & ors v. Nweke & 4 ors [2007] 3 SC (Pt. II) at 55 had reason to pronounce emphatically on the habit of signing court processes. Onnoghen, JSC who delivered the leading ruling stated as follows: There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed Notice of Cross Appeal and Appellants’ Brief in support of the said motion were all signed: J. H. C. Okolo, SAN & Co. Learned Senior Counsel for the appellants does not dispute this but stated that since there is a signature on top of J. H. C. Okolo, SAN & Co, it is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izuogu v. Emuwa, supra, and Banjo v. Eternal Sacred Orders of Cherubim and Seraphim also supra. However section 2(1) of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria 1990 provides thus: Subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. From the above provision, it is clear that the person who is entitled to practice as legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name. Section 24 of the Legal Practitioners Act defines a Legal Practitioner to be: A person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding. The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner, he must have his name on the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J. H. C. Okolo, SAN & Co. is a legal practitioner recognized by law. The defendant, therefore, submitted that as regards the present proceedings, the question is whether it is competent for a person to sign court process for a disclosed principal without the actual signatory indicating his name on the process. To the defendant, the Supreme Court answered in the negative in Okafor’s case, supra, which circumstance is not too dissimilar from the instant case as follows – I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned Senior Advocate claims to be his really belongs to J. H. C. Okolo SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J. H. C. Okolo, SAN & Co. cannot legally sign and/or file any process in the courts and as such the motion on Notice filed on 19th December 2005, Notice of Cross Appeal and Applicants Brief of Argument in support of the said motion all signed and issued by the firm known and called J. H. C. Okolo, SAN & Co. are incompetent in law particularly as the said firm of J. H. C. Okolo, SAN & Co. is not a registered legal practitioner. The defendant also submitted that the same principles applied in the above case be so applied with the offending process filed herein by an unnamed person “for Victor Obaika”. That the implication here is that the processes though signed for or on behalf of a named counsel, does not bear the name of the actual signatory for the purpose of determining if the signatory is a person entitled in law to practice as a Legal Practitioner in Nigeria. To the defendant, the situation here is even worse than that of a process where the signature is on top of a firm name. Also that the Supreme Court very recently in the case of Oketade v. Adewunmi & ors [2010] 2 – 3 SC (Pt. I) at 135, per NIKI Tobi, JSC held that the definition of Legal Practitioner in section 24 of the Legal Practitioners Act does not include a firm name and also an objection raised on a process so signed is not a mere technicality but fundamental. The defendant further submitted that in Ogundele & anor v. Agiri & anor [2009] 12 SC (Pt. 1) 165 – 166 the Supreme Court held per Ogbuagu, JSC that signing a process on top of a firm name is not a mere irregularity as held in the cases of Unity Bank Plc v. Oluwafemi [2007] All FWLR (Pt. 382) 1923, relying on Cole v. Martins [1968] All NLR 161, but that such was a fundamental error. The defendant in the end urged the court to strike out the originating process as well as the accompanying processes in this case with substantial cost since no suit of this nature can be progressed without a valid Complaint and Statement of claim. In response to the notice of preliminary objection, the claimant’s counsel in his written address dated and filed on 8th June 2011 raised one issue for determination, that is – Whether the Originating and Accompanying Processes in issue are competent in law, having not been signed by a person disclosed to be a Legal Practitioner. Arguing against the preliminary objection, the claimant’s counsel submitted that from a close scrutiny of the provisions of Order 4(4)(3) of the NIC Rules 2007, it is clear therein that the requirement is that the originating processes as an aggregate or whole, are the processes in question that require execution and not the General Form of Complaint. The defendant then reproduced the said provisions of Order 4(4)(3) thus – An originating process shall be signed by the Claimant or his or her Legal Practitioner where the Claimant sues through a Legal Practitioner. To the claimant, from the provisions of Order 3(4) of the rules of this court, it can be seen that originating processes consist of the General Form of Complaint, the Statement of Facts, List of Witnesses to be called and copies of every document to be relied upon. That it will be unreasonable to contend that every document which therein makes up the originating processes as an aggregate or whole, should be executed as it would be unreasonable to expect that the claimant signs each and every document that would be relied upon at the trial. The claimant then referred this court to take a look at the General Form of Complaint (Form 1) as provided in the rules of this court. To the claimant, it can be seen from this sample General Form of Complaint that no provision or allowance has been made for the signature of the Claimant or his Solicitor. That the only signature requirements on the General Form of Complaint are the signatures of the Registrar and that of the defendant. The claimant contended that even though Counsel to the defendant had argued that by the provisions of Order 6(2) of the rules of this court, every document which comprises the originating process is required to be signed by the claimant, the claimant argued however that upon a close examination of Order 6(2) it can clearly be seen that what the rules require is for the various copies of the originating processes as an aggregate or whole should be signed, and not that every single document that is a composite of each set of the originating process be signed. The claimant further submitted that the case of Aiki v. Idowu [2006] 7 NWLR (Pt. 984) 47 referred to by the learned counsel to the defendant would not apply in this matter as the case clearly refers to a situation wherein counsel failed to sign the Statement of Defence. That the distinguishing point that the defendant avers in this particular instance is that of the General Form of Complaint not being executed, and not that of the Statement of Claim not being executed by the claimant’s counsel, hence the authorities cited above are not applicable. On the contention of the defendant that the statement of claim was signed by or on behalf of the claimant’s solicitor by a junior in Chambers, the claimant referred this court to the decision of the Court of Appeal in Oladele Ogunsakin & anor v. Rotimi Ajidara & ors [2008] 6 NWLR (Pt. 1082) 1 at 24 – 25 paras E – B where the Court of Appeal cited with approval the case of Dalhatu v. Dikko [2005] FWLR (Pt. 242) 483 as follows – In some law chambers, particularly the very busy ones, it is not unusual for junior counsel to sign documents on behalf of their principal especially the more routine ones like motions, statements of claim, statements of defence etc. The signing of each document by junior counsel is invariably with the authority express or implied of the principal counsel in chambers. It will be absurd, even ridiculous, to hold that such documents are incompetent because the principal counsel had not come forward to say that the documents were not signed on his authority. That the Court of Appeal in Oladele Ogunsakin & anor v. Rotimi Ajidara & ors (supra) went on to hold as follows: In the case at hand, it was not suggested that somebody who has nothing to do with the chambers came from the blues and signed. It has not been disputed that the petition under consideration was not prepared by counsel in the Chambers of Chief Afe Babalola & Co., neither has it been disputed or shown that it was not signed on the authority of the senior or principal counsel in the chambers. It is my considered view that for a party to succeed on allegation of this nature, he has to successfully prove by evidence that the signatory to the petition has no authority of the senior counsel in chambers to sign the petition, and this will involve an opportunity being given to the head of chambers to confirm if the petition was not signed on his authority in accordance with the principle of fair hearing. We have taken a very careful look at the foot of the petition. On the face of it, it is not difficult to see that the petition was signed for Adebayo Adenipekun, SAN counsel for the petitioners with the word “for” immediately before his name. There is no contrary submission to this view. The claimant, therefore, submitted that the defendant has to first of all establish that the claimant’s solicitor did not give his express consent to the originating processes being signed on his behalf, and this he must establish by showing evidence of the said averment, which in this instance he has failed to do. On this issue the claimant referred to the Court of Appeal decision in INEC v. Oshiomole [2009] 4 NWLR (Pt. 1132) 607 at 636 paras B – H. The claimant also submitted that the issues raised in the case of Okafor v. Nweke [2007] J.S.C. (Pt. II) 55 at 64 are completely different from the facts of this matter, as the issue in contention there was whether a counsel could rightfully sign a process in the name of the firm and not whether a junior counsel can sign on behalf of a principal. The claimant therefore urged this court to hold in favour of the claimant in this case and strike out the Preliminary Objection of the defendant. The defendant did not file any reply on points of law. We have carefully considered the processes filed, the written addresses and the authorities cited by the parties. To our minds, the sole issue for determination is – Whether the form of complaint and the accompanying processes are competent same having not been signed by the within named legal practitioner or claimant as mandated by Orders 4(4)(3) and 6(2) of the National Industrial Court Rules 2007. The defendant had argued that failure of the claimant’s form of complaint and other processes to comply with the clear provisions of Orders 4(4)(3) and 6(2) of the NIC Rules 2007 renders the entire processes incompetent and hence be struck out. The defendant also argued that the said processes do not conform with the fundamental requirement of law i.e. the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria 1990 and other decisions of the appellate courts. That as a result of the defect in the processes, this court does not have jurisdiction on the matter. The claimant on the other hand had argued that the originating and other accompanying processes are competent in law, having been signed by a person disclosed to be a legal practitioner. To the claimant even though the counsel did not sign the claim personally, it was however signed by the claimant’s counsel’s junior in chambers. The processes in question i.e. the statement of claim, list of witnesses to be called at the trial and a list of documents to be relied upon at the trial dated and filed on 29th December, 2009 all had the endorsement as follows – (Sgd) ff. Claimant’s Solicitors Victor Obaika Obaika & Co. 3rd Floor, Kingsway Building 2/4 Davies Street Marina, Lagos Victor@obaika.com 08055453876 These were the processes filed on behalf of the claimant in this court. And for any process filed in this court to be valid, it has to conform to the relevant rules of this court. The relevant provisions are Orders 4(4)(3) and 6(2) of the NIC Rules 2007 which provide as follows – Order 4 (4) (3) - An originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner. Order 6 (2) - Each copy shall be signed by the claimant where he or she is suing in person or the Legal Practitioner and shall be certified after verification by the Registrar as being a true copy of the original process filed. A reading of the above provisions reveal that for a process to be valid and proper in this court, it must be signed by the claimant or the Legal Practitioner representing the claimant if the claimant sues through a Legal Practitioner. It is clear on the face of the processes in question that Victor Obaika, the said solicitor to the claimant did not sign the said processes himself. Rather the processes were signed “for” the solicitor, Victor Obaika, by a person who neither indicated his name nor his designation. This has called for the validity of the said processes which were signed “for” Victor Obaika by an unnamed person. This is the issue that has to be resolved. In Okafor & ors v. Nweke & ors [2007] 3 SC (Pt. II) 55, the Supreme Court held that the processes filed in court must be signed by a Legal Practitioner recognized by the law. That a person signing the process must have his name in the roll of registered Legal Practitioners who is qualified to practice as Barrister or Solicitor. The Supreme Court held that section 2(1) of the Legal Practitioners Act Cap. 2007 Laws of the Federation of Nigeria 1990 did not say that what should be in the roll should be the signature of the Legal Practitioner but his name. Also the Court of Appeal, Lagos Division in Peak Merchant Bank Ltd v. NDIC unreported Suit No. CA/L/572/05, the judgment of which was delivered on May 14, 2010 applied the decision of the Supreme Court in Okafor v. Nweke (supra). In that case, His lordship Mshelia, JCA held as follows:- I am of the firm view that any person signing process on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of registered legal practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in the chambers. Nobody is saying that a junior counsel in chambers cannot sign or file process on behalf of a principal partner but his identity must be stated. It is not enough to just sign the process without indicating the name and designation of such person. This position of the law was again re-affirmed by the Supreme Court in the recent case of SLB Consortium Ltd v. NNPC [2011] 9 NWLR (Pt. 1252) 317. In that case, the Supreme Court held as follows:- All processes filed in court are to be signed as follows – (a) First, the signature of counsel, which may be any contraption. (b) Secondly, the name of counsel clearly written. (c) Thirdly, who counsel represents. (d) Fourthly, name and address of Legal Firm. Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the Legal Practitioners Act. There must be strict compliance with the law. With the position taken by the Supreme Court and the Court of Appeal as per the above cases, that is, that processes must be signed by a legal practitioner known to law and also ascertainable, we hold that the identity of the person who signs a court process is material as regards the competency of the said process and to the jurisdiction of the court to entertain the suit. We therefore hold that the non-disclosure of the identity of the person who signed the processes in this suit on behalf of the claimant’s counsel is not a mere irregularity but a fundamental error. The said processes are, therefore, fundamentally defective and liable to be struck out because there is no valid process before this court upon which this court is to determine the case on merit. Having found that the processes filed on the 29th December, 2009 are incompetent, the said processes are hereby struck out. Ruling is entered accordingly. We make no order as to cost.