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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 18th NOVEMBER, 2013 SUIT NO: NICN/ABJ/152/2013 Between: Ebi Kehinde Aligbali and Another Claimant AND Power Holding Company Nigeria (PHCN) PLC Defendant PRESENTATION 1st Claimant present 2nd Claimant present The defendant is represented by Mrs. Pamela Chidebelu Assistant Manager legal for PHNCN Edward Iheokhan Esq. for the claimant, Chinelu Nzemanze Mrs for the defendant RULING On the 24th of September, 2013, this court ordered the respective counsel in this case to address it on two main issues. 1. The proprietary and legal validity or otherwise of the writ of summons or complaint in this suit 2. The legal validity of the pending motion seeking to amend the complaint or the writ. It should be recalled that earlier to this date, the court had earlier drawn the attention of the claimant counsel Mr. Jacob Chikwe to the endorsement of “ Edafe Chambers” on the complaint . i.e. Edafe Chambers purportedly issued the complaint as the legal practitioners for the complainant in this suit. On the 24th of October 2013, claimant counsel moved the court to grant his motion for amendment dated the 13th of September 2013. The motion is supported by a 9 paragraph affidavit, a further affidavit sworn to on the 21st of October 2013, a written address and a further written address dated and filed on the 21st of October 2013. In the written address to the motion for amendment, Mr. B. O. Nafagha invited the court to its equitable jurisdiction and powers since such an application for amendment is made before trial. He referred to the case of Egwa Vs Egwa 2007 I NWLR Pt. 1014 Pg 71 at Pg. 79 Ratio 9 . Amendment he further submitted will not prejudice the defendant as amendment of this suit can be made at any stage of the proceedings. He call in aid the case of Gowon Vs. Ike Okongwu 2013 FWLR Pt. 147 pg 1027 Ratio I. He therefore urged the court to grant the amendment. In his further written address dated 21st October 2013 and filed the same date which is sequel to the further and better affidavit filed on the same 21st October 2013, Mr. B.O. Nafagha conceded entirely on the fact that where a complaint or a writ is endorsed or signed by Edafe Chambers as in this case, it amount to a blunder or a defect by claimants counsel which renders the writ/ complaint and the entire suit incompetent. He referred the court to the case of Jika Vs. Akuson 2006 All FWLR Pt. 293 276 Ratio 9 . Counsel therefore urge the court to treat the error as a mere noncompliance in the interest of justice and allow the amendment since striking out the case will ultimately shot the door of justice against the complaint due to the provision of section 2 (a) of the public officers Protection Act, Laws of the Federation of Nigeria 2004 Cap 41. Counsel posited further that the only way to meet the justice of this case is to allow the amendment as prayed in the motion dated the 13th of September 2013. Counsel cited the cases of Anakwe Vs. Oladeji 2008 All FWLR Pt. (399) 571; Nkoro Vs. Azuru 2009 All FWLR (Pt. 496) 1951. Mohammed Petroleum Ltd Vs. Afribank Nigeria Plc 2007 All FWLR (Pt. 344) 81 ratio 3 to buttress his argument in line with the principles guiding amendment, the essence of amendment , the focus of amendment and the end result of amendment. He further urged the court to avert its mind and attention to the fact that the main essence of his application is to correct an error and breath life to the case and as such a liberal attitude should be adopted in arriving at a decision . Nafagha Esq. further submitted that the days of technicalities which are now gone should be replaced with the tenents of substantial Justice. He referred the court to the cases of Adeyemi III Vs. Adegoye III All FWLR Pt. 551 1598 ratio 4 ; NDDC Vs. Precision Associate Ltd 2007ALL FWLR Pt. 385 553 ratio 2 and 3; SCC Nigeria Ltd Vs. Etemadu All FWLR (Pt 230) 1168 ratio 2; New Nigeria Bank Ltd Vs. Onwudiwe 2006 All FWLR Pt. 292 178 ratio 5 Olawore Vs. Ojo (2006) All FWLR Pt 341 1382 ratios 3 and 6 Olowokere Vs Akinsiku (2004) All FWLR (Pt. 202) 1970 ratio 8. Counsel submitted again that the sins of counsel should not be visited on the litigants and that rules of practice should not be applied rigidly to produce in justice; he cited the cases of Olatubosun Vs. Texaco Nigeria Ltd Plc 2004 All NWLR (Pt. 2006) 538 ratio 5; Akinpelu Vs. Adegbre (2008) ALL FWLR (Pt. 429) 413 ratio 9. Agogu Vs. Nnamani 2005 All FWLR (Pt. 283) 46 ratio 4 Sanni Vs. Agara 2008 ALL FWLR (Pt. 432) 1185; Okunagba Vs. Esiri (2004) All FWLR Pt. 228, 729 ratio I; Fidelity Bank Plc Vs. Monye 2012 All FWLR (Pt. 631) 1412 ratio 2 Unillorin Vs. Akinyanju (2008) All FWLR Pt. 406 1989 ratio 4: Olley Vs. Tunji 2013 ALL FWLR Pt. 687 625 ratio 5; Int. Carpets Ind Ltd Vs. Savannah Bank Nigeria Plc 2006 ALL FWLR Pt. 325 108 Pt 8; Yisa Vs Orzua 2006 All FWLR Pt. 311 1942 ratio 8. Counsel urged the court to determine this matter on the merit by granting his amendment rather than scuttle it half way by the hammer of technicality. In opposing the application of Mr. Nafagha, Mrs. Amaka Nwizu counsel to the defendant filed a written address dated the 23rd of October 2013 but filed on the 24th October 2013 wherein she raised two issues for determination. 1. Whether or not the claimant complaint as presently before the court is fundamentally defective to make it incompetent, null and void 2. Whether or not the defect in the complaint (if any) can be cured by the claimant’ s motion to amend. On issue one, counsel posited that the suit of the claimant is defective fundamentally thereby robbing the court of jurisdiction. In that the originating process in this suit being the writ do not conform with the regulated and stipulated legal provisions as enshrined in order 4 rules 4 (111) of the rules of this Court. She further submitted that Edafe Chambers as endorsed on the writ not being a legal practitioner as defined by the legal practitioners Act 2002 cannot sign or endorse originating processes as a writ to commence an action. She called in aid the cases of Okafor Vs. Nweke 2007 10 NWLR (Pt 1043) 521 Oketade Vs. Adewunmi 2010 8 NWLR Pt. 1195, Adeneye Vs. Yaro 2013 3 NWLR Pt. 1342. She urge the court to decline jurisdiction since the court lacks the power to entertain this suit. She referred the court to the case of Madukolu Vs. Nkedilim. On the issue of amendment, counsel urge the court not to allow the amendment as it is already belated since the court cannot rest something on nothing. i.e once the court has no jurisdiction, it has no power to amend any process. She call in aid the case of Integrated Merchant Ltd Vs. Osun State Government and Another Suit CA/1/280/2008, Oketade Vs. Adewunmi (Supra) Macfoy Vs. UAC 1961 3 ALL ER 1169. Nigerian Army Vs. SGT Asano and Another suit SC/75/2008 delivered on Friday 12th July 2013. Counsel urge the court to dismiss the claim of the claimant for being incompetent. I have carefully gone through the arguments of counsel for both parties as contained in their respective written addresses, the claimant’s affidavits and the authorities cited in support of their contending positions. It is not in dispute that the main issue in controversy is the name Edafe Chambers endorsed on the originating process i.e. the complaint of the claimant. The complaint in this court is also referred to as the writ. That is; it represents the writ of summons. This court raised the issue of the legality or otherwise of the writ in this suit suo motu and proceeded to request for arguments in a form of address from counsel to the parties. The lone issue for determination can be succinctly encapsulated as; whether the writ is properly endorsed in law as to make the suit properly constituted before this court. On the 18th of March 2013, the claimants through their legal practitioner took out a writ against the Power Holding Company of Nigeria Plc with the following endorsement “This writ was issued by Edafe Chambers whose address for service in suit (SIC) suite 11B Sabondale shopping complex, beside Mr. Biggs Obafemi Awolowo way Jabi District Abuja” When this suit was transferred to this court from the Federal High Court on the 4th of June 2013 by an order of that court dated the 14th of May 2013, the claimants through their counsel filed a fresh writ on the 17th of June 2013 with the following endorsement over three years thereafter with the same Edafe Chambers. “This complaint was issued by Edafe Chambers whose address for service is suit (SIC) Suite 11B sabondale shopping Complex, beside Mr. Biggs Obafemi Awolowo way Jabi District Abuja.” In the claimant further and better affidavit to the motion for amendment dated the 21st of October 2013, the deponent stated in paragraphs 5, 6 and 10 as follows: ‘5’ “ That in issuing the compliant my principal B.O. Nafagha Esq. wrote in the draft that the writ of Summons in the Federal High Court was issued by B.O. Nafagha Esq. of Edafe Chambers………….,” ‘6’ “That however, in typing it, I mistakenly omitted the name of my principal and instead type the name of Edafe Chamber as the one issuing the writ of Summons” ‘10’ “That this is a serious blunder which will render the suit incompetent if not corrected through amendment” I find it very difficult to believe the claimant to the effect as stated in the affidavit. How can a blunders of such a magnitude duly admitted by counsel be allowed to persist for even more than three years in a pending suit until raised suo moto by the court. It is in this vein, that this court is in serious alignment with the decision of the Supreme Court in the case of Okafor Vs. Nweke (2007) 10 NWLR (Pt. 1043) 521 wherein onnoghen JSC says that “legal practice is a serious business…….” it therefore behoves on counsel to take it as such and cross check every process before endorsement. Counsel cannot and should not pass the buck. By the provision of order 4 rules 4 (3) of the NIC rules 2007, the originating process shall be signed by the claimant or his or her legal practitioner where the claimant sues through a legal practitioner” From the processes before the court, which I have the power to look at, the signature on the writ endorsed below the address of the claimants counsel address becomes extremely meaningless as it does not depicts what it represents. What I mean is that even if the endorsement is suppose to be the signature of the claimants counsel, it ought to be on top or in front of the name of the counsel. This is not the case here. This is a complete departure, even from the known conventional practice known to law. The same position is reflected both in the writ before the Federal High Court and before this court. This in my view is quite absurd and unacceptable. Edafe Chamber is the name seen on the writ. The claimant counsel has not told this court whether it is a registered business name or not. Even if it is, the question is, can it originate a court process capable of setting the legal process in motion worthy of any attention by the court? The answer is a blatant No. This is because the law only recognizes a legal Natural person called to the Nigerian bar as a person qualified to endorse an originating process as a writ. Section 2 (1) and section 24 of the Legal Practitioners Act 2002 provides as follows: 2 (1) “subject to the provision of this Act a person shall be entitled to practice as a Barrister and solicitor if, and only if his name is on the roll” 24 “legal practitioners means a person entitled in accordance with the provision of this Act to practice as a Barrister and solicitor, either generally or for the purposes of any particular office or proceedings”. For the purpose of this particular proceedings it is settled law that the entity described and known as Edafe Chambers is in the eye of the law, at best a business name and not a legal practitioner enrolled in the Supreme Court of Nigeria to practice law. Edafe Chambers therefore cannot file and sign court processes or frank legal documents. This is trite law in our jurisprudence. Moreover where a process is issued (like in this case) other than a name of a legal practitioner or the litigant themselves, it is not a mere irregularity that can be brushed aside but a fundamental vice affecting the judicial process in question and such a process become incompetent, null and void See the case of Oketade Vs. Adewunmi (2010) 8 NWLR Pt. 1195 63. Edafe Chambers is not only a name not enrolled in the rolls of legal practitioners in Nigeria worse still, it is also not a legal person known to law i.e it is not a natural person and it is not an artificial person. The lack of legal personality therefore is a fundamental defect which cannot be cured or remedied by an amendment and as justice onnoghen (JSC) Said in Nigerian Army Vs. Asanu and Others 2013 LPELR J09 31 SC “It is a defect that goes to the root of the proceedings and renders same void ab initio” In the eye of the law, this suit do not exist and cannot be accorded validity by an amendment. I so hold. What is void therefore is void. Moreover it was held in Madukolu Vs. Nkedilim 1962 2 NSCC P. 374 that a court is competent when (a) “ It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another” (b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction, and (c) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. The issue in this case falls within (b) and ( c) above. I hold further that the feature in this case prevent me from exercising jurisdiction because the case is not intiated by due process. In SLB Consortium Vs. NNPC 2011 4 SCJ Pt. 211 Bode Rhodes Vidour JSC stated how processes filed in court are to be signed First : Signature of counsel Second : Name of counsel clearly written. Third : Who counsel represents . Fourth : Name and Addresses of legal firm It is very clear that the process in question is barren as far as these requirements are concerned. In view of the fact that counsel to the claimant has not drawn my attention to any authority contrary to this position stated above neither has my research yielded any contrary position, I hold that this suit is not competent. I must not end this ruling without touching on the fear of the claimant counsel to the effect that this suit will be statute barred under the public officers protection Act if it is struck out. By the authority of the Supreme Court in the recent case of AG. River State. Vs A.G Bayelsa State 2013 3 NWLR (Pt. 1340) 123 at 148-150 Paragraph F-A. The scope of exception to the application of POPA is getting more enlarged. The claimant can explore and exploit the exceptions contains therein moreover as his claims borders on continuous injury or damage. On the whole, the application for amendment cannot be considered as the suit is struck out. I make no order as to cost. ---------------------------- - Hon. Justice P.O Lifu JP. Judge