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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: July 23, 2012 SUIT NO. NICN/EN/12/2012 BETWEEN Dr. Augustine Enofe - Claimant AND 1. Governing Council, University of Port Harcourt. 2. The Vice Chancellor University of Port Harcourt 3. The Registrar and Secretary to the Council, - Defendants University of Port Harcourt. 4. University of Port Harcourt, Rivers State. REPRESENTATION S.Odiase with J.A. Omoruyi (Miss) for claimant. A.U. Agbor and with him Nestor Ezeme for Defendant. RULING The claimant filed a complaint against the defendants on the 14th February 2012 claiming the following reliefs: 1. A declaration that the plaintiff is a staff of the Defendants by virtue of the temporary appointment offered him as Lecturer 1 in the Department of Accounting, Faculty of Management Sciences, University of Port Harcourt vide the Defendants letter of 7/5/2010 with Reg. No. UPH/2010/4135 the plaintiff having accepted the offered and assumed duty within the stipulated period. 2. A declaration that the plaintiff is entitled to be paid his salaries and other entitlements based on the University Academic Staff Salary Scale (CONUASS 4 Step 1) i.e. (N338323* 1305) = N442731.00 from the day the plaintiff assumed duty with the Defendants till the date of the filing of this suit. Or in alternative 3. General damages in the sum of N30,025,000.00 (Thirty million, twenty-five thousand naira) only for breach of contract of employment. Accompanying the complaint is the statement of facts, list of witnesses, verifying affidavit. The defendants entered conditional appearance on the 26th March 2012 and filed a motion on notice on the 14th May 2012 praying for the following: (i) an order setting aside the claimant’s originating process herein and striking out the complaint for want of jurisdiction; and (ii) for such order or further orders as to the court may be fit and proper in the circumstances. The ground for the application is set out as follows: The originating process is invalid as the claimants complaint was not accompanied by the requisite materials as required by Order 3 Rule 4 of the Rules of this court before it was filed and served on the defendants. The motion is supported by a 6 paragraph affidavit sworn to by Nnedimma Ngene a litigation clerk to which is attached certified True copies of documents marked exhibit A. On the 11th June 2012, the claimant filed a motion praying for the following orders: (a) Granting the claimant/applicant leave to apply for an extension of time to file his written statement on oath with copies of the documents to be relied upon out of time. (b) Granting the claimant/applicant an extension of time to file his written statement on oath with the copies of the documents to be relied upon out of time as the time allowed by the rule of court having expired. (c) Deeming as properly filed and served on the Defendants/Respondents the claimant’s/applicant’s written statement on oath with the copies of the documents to be relied upon attached herein as Exhibit A the appropriate filling fees having been paid. (d) And for such order or orders as this Honourable court may deem fit to make in the circumstances of this case. The motion is supported by a 10 paragraph affidavit sworn to by Dayo Ohokhara to which is attached copies of documents marked as Exhibit A. At the proceedings of the 13th June 2012, counsel agreed that the two motions be consolidated and heard together so as to save time as the same arguments and submissions will be proferred in both applications. Learned counsel to the claimant began by orally praying the court to amend the motion paper to reflect that the motion is brought pursuant Order 11 Rule 1, Order 5 Rule 1 & 3 and Order 25 Rules 1, 2 & 4. The prayer was granted. He stated that in filing the originating processes, he inadvertently omitted to file the copies of the documents to be relied on by the claimant. He stated that the complaint was accompanied by the statement of facts and list of witnesses but not the copies of documents as provided in Order 3 Rule 4. He submitted that this is an irregularity which by virtue of the provisions of Order 5 Rule 1 is non compliance and the court is enjoined to give directions as it deems fit and may direct a departure from the rules by virtue of Order 5 Rule 3. He submitted that the omission of the documents has not occasioned any miscarriage of justice to the defendants who have not filed a statement of defence and therefore have not been prejudiced as the nature of the case has not been altered. It was his submission that non compliance with Order 3 Rule 4 does not rob the court of jurisdiction to hear this matter. That by virtue of the provisions of Order 3 Rule 7, what is contemplated by the rules is that the process will not be accepted for filing. He contended that since the originating, process had been accepted for filing, Order 5 gives the court a discretion on what to do. He prayed the court to strike out the defendants motion and grant the claimants prayers as the defendants have not shown how the court lacks jurisdiction to entertain this matter. Counsel referred to the affidavit in support of the defendants motion and submitted that the deponent failed to state his residential address contrary to section 117 of the Evidence Act. He also submitted that the deponent has alluded to the Rules of court in paragraph 5 and did not state how he came about the facts. He urged the court to strike out this paragraph. In reaction, learned counsel to the defendants while arguing both applications submitted that the orders pursuant to which the claimants motion is brought do not aid the application. He submitted that order 25 Rules 1, 2 & 4 relate to a time limit prescribed by the Rules of court or any law and that there is no rule of court limiting the time within which he can take his action. He contended that the issue here is the service and issue of originating process from the registry of the court. He submitted that Order 11 has not authorised the claimants application. He submitted that the claimants failure to comply with the provisions of Order 3 Rule 4 is not a mere irregularity that can be cured by this application as a case must be initiated by due process citing Madukolu v Nkemdilim ………… He submitted that this case has not been initiated by due process in that a condition precedent has not been fulfilled. He submitted that where statute directs a manner, the court must see that the provisions of the statute are kept. He cited Nwankwo v Yar. Adua [2010] 3 SCNJ 244 at 265, NEPA v Onah [1997] 1 SCNJ 220 at 230 & 228, Atolagbe v Awani [1997] 9 NWLR (Pt 522) 562 – 563. He further submitted that originating process filed without compliance with statutory provisions is null and void and that non compliance with Order 3 Rule 4 is not a mere irregularity, but is incurably bad. He urged the court to strike out the claimants originating process. Replying on point of law, learned counsel to the claimant submitted that the defendants motion is incompetent as it is not brought under any Rule of court or law as stipulated in Order 11 Rule 1. He submitted that the cases cited are not applicable and as such should not be considered. That if anything is left undone at the point of filing of the originating processes, specifically a process not filed at that time, the party is deemed to be out of time and must seek for enlargement of time. He submitted that this action was instituted by the due process of law because in the absence of the documents, the claim is maintainable. He urged the court not to give in to technicalities this being a procedural error. He referred to Order 15 and urged the court to also have recourse to the Federal High Court Rules. He finally urged the court to allow the claimants application. I have carefully looked at both applications, the processes filed, the submissions and authorities cited by counsel. The claimant has submitted that the defendants motion is incompetent as it is not brought under any Law or Rule of court. I find that it is actually a preliminary objection on point of law which can be raised orally even though it is erroneously headed “Motion on Notice” It is therefore a competent objection. The main issue to be determined is whether the claimants failure to accompany the General Form of Complaint with copies of the documents to be relied on at the trial is to be treated as an irregularity or a fundamental error. Order 3 Rule 4 and Rule 7 provides as follows: 4. The Complaint shall be accompanied by: (i) a statement of facts establishing the cause of action; (ii) copies of every document to be relied on at the trial; (iii) list of witnesses to be called. 7. 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 claimant has accompanied the complaint only with the statement of facts and list of witnesses to be called. This was accepted by the Registry for filing. In the affidavit in support of the claimants motion, paragraph 3, 4, 5, 6 & 7 is reproduced as follows: 3. That I am informed by our Principal Counsel in chambers Solomon Odiase Esq., and I verily believed him that when he was briefed by the claimant/applicant in this case the several documents to be relied upon were handed over to him to enable him prepare all relevant documents needed to prosecute this case. 4. That I was further informed by our Solomon Odiase Esq., after preparing the complaint, statement of fact, the list of witnesses and other documents he inadvertently left out the complainant’s written statement on oath and the copies of the documents to be relied upon. 5. That the complainant’s written statement on oath with the copies of documents to be relied upon as prepared are attached herein as Exhibit A. 6. That their earlier omission at the point of filing was not deliberate but due to inadvertence of counsel. 7. That I am informed by Solomon Odiase Esq., of counsel that leave of this Honourable Court is required to enable the Complainant file Exhibit A out of time hence this application for an extension of time to do so. This shows that the error was on the part of counsel and it is trite law that mistakes of counsel should not be visited on a litigant. See Ibodo v Enarofia [1980] 5-7 SC 29, Nneji v Chukwu [1988] 3 NWLR (Pt. 81) 186. Order 5 Rules 1 and 3 provide as follows: 1. Failure to comply with any of these Rules may be treated as an irregularity and the court may give any direction as it thinks fit. 3. The court may direct a departure from these Rules where the interest of justice so requires. The facts before me show that the Registry accepted the complaint and sealed it even though there was only partial compliance with Order 3 Rule 4 by the claimant. The claimant merely seeks to be allowed to file the documents he intends to rely on at the trial of his case together with his written statement which was inadvertently left undone at the time of filing the complaint. It is in realization of this fact that he did not fully comply with the provisions of Order 3 Rule 4 at the time of filing the complaint that he now prays for time to be extended to enable him to do. Order 25 Rule 4 provides that “the court may, as often as it deems fit and either before or after the expiration of the time appointed by these Rules or by any judgement or order of the court, extend or adjourn the time for doing any act or taking any proceeding.” I find that this Order aids this application. The question is whether allowing the claimant to file his documents and witness statement on oath will occasion any injustice to the defendants. I do not think so as the defendants have not filed a statement of defence and so are not in any way over reached. It is in the interest of justice that time be extended to allow all the documents the claimant intends to rely on be brought in as the complaint and other accompanying process have already been accepted by the Registry and served on the defendants. It is for all of the above reasons that I hold that the failure to accompany the complaint with copies of the documents is a mere irregularity in line with Order 5 Rule 1. The defendants motion is hereby dismissed. Leave is granted the claimant to file the documents he intends to rely on and the witness statement on oath out of time. The documents and statement on oath already filed and served are deemed to be properly filed and served. I make no order as to costs. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae