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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE: 10TH JULY, 2023                    

SUIT NO: NICN/ABJ/153/2020

 

BETWEEN

MRS ADA ALAGBA ………………………………………CLAIMANT

(For herself and on behalf of the Estate

of MWO Monday John Alagba)                                               

 

AND  

NIGERIA AIRFORCE…………………………………….DEFENDANT

 

     

REPRESENTATION

David Ashaolu Esq with Adetoro Adebayo Esq, V.R. Uma Esq, David Benny Esq, P.C. Onyekwere Esq and Ledagha Egede Esq for the Claimant.

Adebola Odugbesan Esq. with O.N. Ogundijie Esq and Benjamin Chabki Esq and Nkiruka Ekweogwu Esq for the Defendant.

 

                                                            JUDGMENT

1.      By a General Form of Complaint filed on 13th July 2020 which was subsequently amended pursuant to Order of Court, the Claimant seeks the following reliefs against the Defendant;

 

1.      AN ORDER of this Honourable Court voiding the agreement made November, 30, 2018 wherein the Claimant purportedly resolved to share the benefits of the deceased MWO Monday Alagba with one Mrs Mary Alagba.

2.      AN ORDER of this Honourable Court mandating the Defendant to present a comprehensive list of all entitlements and benefits accruing to Late MWO Monday John Alagba by reason of his services to the nation and his death in active national service and account for same.

3.      AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant, the total sum accruing to the Estate of late MWO Monday John Alagba by reason of his death in active national service, including, but not limited to Gratuity, Pension, Death, Insurance, Benefits and Housing Scheme Refunds less only amounts already paid to the Claimant through her daughter, the Next of Kin.

4.      AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of N5, 836,852 (Five Million, Eight Hundred and Thirty-Six Thousand, Eight Hundred and Fifty-Two Naira only), being the portion forcefully taken by the Defendant, through Group Captain G. Oremosu, from the Group Life Assurance Benefit paid to the Claimant by the Defendant.

5.      AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of N562,000 (Five Hundred and Sixty-Two Thousand Naira only), being the portion forcefully taken by the Defendant, through Group Captain G. Oremosu, from the deceased Airman’s 3 months’ salary paid to the Claimant by the Defendant.

6.      AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of N9,100,000 (Nine Million, One Hundred Thousand Naira only), or any such sum as the Court may adjudge, being the remainder of the Death Benefits of the Late MWO Monday John Alagba.

7.      AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of N10,000,000 (Ten Million Naira only), as general damages for the emotional, financial and physical trauma suffered by the Claimant in her bid to recover the Death Benefits belonging to the estate of Late MWO Monday John Alagba.

8.      The cost of this suit as may be assessed by this Honourable Court.

2.      It is the case of the Claimant vide her amended statement of facts that she was lawfully married to late Master Warrant Officer Monday John Alagba who was in the service of the Defendant at Yenagoa, Bayelsa State until his death on 1st October, 2015. It is part of her averment that after the conclusion of burial rites of the deceased she was required by the defendant to come and process her husband’s death benefits and after perfecting the administrative requirements at the office of the Defendant to access the benefits of the deceased, she was informed that her late husband had another wife who was said to have 6 children for the deceased Airman which claim she denied and was vehemently opposed to as it was an attempt by the defendant and the other woman to cheat her out of her late husband’s benefit. She maintained that her daughter is the Next of Kin while she is the Alternate Next of kin. The Defendant insisted on sharing the deceased Airman’s benefits and entitlements between her and the other woman whom they claimed was the 1st wife of the deceased airman with 6 children. That she was forced at gun point to agree to sharing the death benefits of her husband with the strange woman as a result of which the defendant through one Group Captain Oremosu only gave her N2,000,000.00 (two million Naira) out of the first tranche of  N7,836,852 (Seven Million, Eight Hundred and thirty-six thousand, eight hundred and fifty-two Naira) only and gave her only the sum of N285,000 (two hundred and eighty-five thousand Naira) only from the sum of N847,000 (Eight hundred and forty-seven thousand Naira only) received as the deceased Airman’s benefits. The defendant through the said Group Captain Oremosu despite the fact that she has a Letter of Administration to administer the Estate of her deceased husband has denied her access to the other part of deceased benefits which was paid into her daughter’s Next of Kin account because she refused to share the said sum. Finally, she stated that the above situation has caused her emotional and physical abuse and caused her great financial loss.

 

3.      The case of the defendant vide its statement of defence filed on 14th December, 2020 is that the deceased MWO Monday John Alagba had a first wife that bore him six children on record and that the Claimant’s daughter was named by the deceased as his Next of Kin while one of the daughters of the deceased was named as Alternate Next of Kin. It averred also that Claimant had given an account number other than the original Next of Kin account number and that she had been dishonest all through the process. That the sum of N847,000 was paid into the fraudulent account supplied by the Claimant. It also averred that the staff of the Bank were requested not to release the money to the Claimant and that the act of the Claimant by giving a fraudulent account instead of the original Next of Kin account and her attempt to secure the deceased’s benefit to herself and daughter alone necessitated the request to the Bank. The Claimant had insisted on having the benefits of the deceased Airman to herself alone to the exclusion of other lawful beneficiaries. It averred further that Claimant’s brother was not arrested but was only invited and that several lawyers hired by Claimant earlier withdrew when they got to know the true situation of things. The defendant merely advised that the death benefits of the deceased Airman be shared between the Claimant and the first wife and that the resolution to share the benefits between the two was an amicable resolution. The Claimant’s daughter due benefits were paid in line with the resolution reached. It averred further that Claimant is not entitled to the reliefs sought as such her case should be dismissed.

 

4.      Also filed by the defendant is a Notice of Preliminary Objection filed on 14th August 2020 wherein the defendant challenged the jurisdiction of this Court to entertain the Claimant’s case on the following grounds;

 

i.                    That this Court have no jurisdiction to hear this suit.

ii.                 That the power/jurisdiction of the National Industrial Court does not cover the claims of the Claimant’s/Respondent’s reliefs

iii.               That the Claimant’s/ Respondent’s suit is accordingly incompetent and lacking in bonafides.

 

5.      Filed in support of the Application is a final written address in compliance with the Rules of this Court wherein learned counsel formulated a sole issue for determination thus; whether this Honourable Court can exercise its jurisdiction to adjudicate on the reliefs sought by the Claimant/Respondent?

 

6.      Learned counsel on behalf of the defendant submitted that the jurisdiction of this Court is clearly circumscribed by the provisions of Sections 254 C and 254 D of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He submitted that the case of the Claimant is founded on probate which is outside the jurisdiction of this Court. He submitted that the jurisdiction of this Court in relation to employment related dispute has been affirmed by the Court in the case of Nasarawa State Specialist Hospital Mgt Board & Ors v. Mohammed [2018]LPELR-44551(CA). It is counsel’s position that Courts are not allowed to assume jurisdiction where the originating process possess disability and which disability in the case at hand is on the fact that this case is anchored on probate. He relied on the case of Onwujekewe v. Okoye & Anor [2019]LPELR-47169, P25, Paras A-B. He submitted while relying on the case of Madukolu v. Nkemdilim [1962]1 All NLR (Pt. 4) 578 @597 that there are certain conditions that must be fulfilled before a Court can assume jurisdiction in a case. He maintained that jurisdiction is the life-wire of all actions without which the whole proceeding is rendered a nullity. He urged the Court to dismiss the Claimant’s case for lack of jurisdiction.

 

7.      On the 22nd day of December, 2020 parties in this case gave their consent to try this case on record under the Argument on Record Procedure pursuant to Order 38 Rule 33 of the National Industrial Court (Civil Procedure) Rules, 2017. On the 3rd day of March, 2021 Claimant sought for and got the leave of the Court to amend her process which culminated in the filing of an Amended Complaint on 28th July 2021. Parties filed their final written addresses which were adopted on the 18th April, 2023. 

 

8.      Learned counsel on behalf of the defendant filed his final written address on the 23rd December, 2020 and same was adopted on 18th April, 2023 and therein learned counsel formulated two issues for determination thus;

1.      Whether the Claimant’s evidence are cogent enough to tilt the scale of justice in her favour?

2.      Whether having failed to comply with the provisions of Section 277(2) of the Armed Forces Act, being Condition precedent, the Claimant can invoke the exercise of Court’s jurisdiction?

 

9.      In respect of issue one, it is learned counsel’s submission that the burden of proof lies on the person who will fail if no evidence is led in a case. He cited in support Section 136 of the Evidence Act. It is also his submission while placing reliance on the case of Ayani v. Adesina [2007]7 NWLR (Pt. 1033)263-264, Paras H-A that a Claimant ought to rely on the strength of his own case and not on the weakness of the defendant’s. He submitted that even from the pleadings of the Claimant she has shown dishonesty all through the process and that he who comes to equity must come with clean hands. He relied on the cases of Ukaegbu v. APGA [2020]8 NWLR (Pt. 1725)28@122, Paras E-F and County & City Bricks Dev. Co Ltd v. Hon. Minster of Env., Housing & Urban Development & Anor [2019]5 NWLR (Pt. 1666)484@503, Paras A-C. He submitted that Claimant has failed to show that her past conduct in the transaction has been fair and honest. It is part of counsel’s submission also that in civil cases the initial burden of proof lies on the Claimant while the burden of proof in rebuttal of issues which arise in the course of proceedings may shift from the Claimant to the defendant and vice versa as the case progresses. He relied on the case of Orji v. Dorji Textile Mills (Nig) Ltd [2010] All FWLR (Pt. 519)999@1013-1014 and Elema v. Akenza [2000]6 SCNJ 226@238.

 

10. Learned counsel posited that Claimant willingly submitted to the terms of the agreement on the distribution of the benefits of the deceased Airman and executed that the monies should be shared amongst beneficiaries of the deceased and cannot approbate and reprobate. He cited in support the cases of Aderonpe v. Eleran & Ors [2018]LPELR-46308 (SC); Ude v. Nwara [1993]2 NWLR (Pt. 278)638. It is equally learned counsel’s position while relying on the case of Osaseren v. FRN [2018]LPELR-43839 (SC) that equity follows the law. He submitted that relief 1 in the Claimant’s claims is declaratory and which relief Claimant must adduce sufficient evidence to establish her entitlement to. He relied on the case of Anyaru v. Mandilas Ltd [2007]10 NWLR (Pt. 1093)462@477-478. He posited that where relief 1 fails the other reliefs will be refused by the Court. He called in the aid of the case of Yusuf v. Co-operative Bank Ltd [1994]7 NWLR (Pt. 359)676@679, Para A. He submitted that the case of the Claimant being a declaratory one is one which will not even succeed on an admission. He cited in support the case of Ndayako v. Dantoro [2004]13 NWLR (Pt. 889)187@214. He submitted that Claimant has failed to discharge the burden on her and as such her case must fail.

 

11. On issue two, learned counsel posited that the Claimant having failed to comply with the provisions of Section 277 (2) of the Armed Forces Act, Cap A20, Laws of the Federation, 2004 have divested the Court of the necessary jurisdiction to entertain her case. He relied on the provisions of Section 277(2) of the Armed Forces Act. He submitted that Claimant failed to comply with the said provision of the Armed Forces Act which provision is clear and unambiguous. It is part of counsel’s position that Claimant sought to exclude all other lawful beneficiaries of the deceased Airman and the law frowns at such. He submitted that Claimant had stated in her pleadings that her father advised her to sign the agreement which she claimed to have signed under duress. He submitted the Claimant cannot approbate and reprobate at the same time. He cited in support the cases of Aderonpe v. Eleran, supra and Ude v. Nwara, supra. It is counsel’s position that it is until when the condition precedent to the doing of an act has been complied with that subsequent acts done can be said to be valid. He placed reliance on the case of Orakul Resources Limited v. Nigerian Communications Commission [2007]All FWLR (Pt. 390)1482@1506, Paras D-H. Counsel maintained that Claimant having failed to comply with the condition precedent to the distribution of the deceased death benefits in the case of intestacy as prescribed in the Armed Forces Act before approaching this Court has divested the Court of the necessary jurisdiction to entertain her case. He urged the Court to discountenance Claimant’s averments as same is frivolous and gold-digging.

 

12. Learned Claimant’s counsel filed his final written address on 1st February, 2021 which was adopted on 18th April, 2023 wherein counsel formulated the following issues for determination;

i.                    Whether the purported agreement dated November 30, 2018, executed by the Claimant, the purported second wife (Mrs Mary Alagba) and witnessed by Group Captain A. O. Kotun, Squadron Leader A. O. Ayanbode and Warrant Officer Fayeun A. A. at the Headquarters of the Defendant is null, void and should be set aside?;

ii.                 Whether the Claimant is entitled to the sum of N5,836,852.00 and N562,000.00, which were forcefully obtained from her by the Defendant?;

iii.               whether the Claimant is entitled to the sum of N9,100,000.00, being the remainder of the Death Benefits of the deceased MWO John Monday Alagba?;

iv.               whether the Defendant was right to unilaterally share the benefits of the deceased MWO John Monday Alagba between the Claimant and one Mrs Mary Alagba, purported other wife of the deceased airman?; and

v.                  Whether the Claimant is entitled to general damages of N10,000,000.00 as claimed.

 

13. On issue one, learned counsel submitted that the purported agreement was signed under duress. He relied on the cases of C.C.C. Thrift Credit Society v. Ekpo [2001] 17 NWLR (Pt. 743) 649@675 and S.P.D.C.N. Ltd. v. Nwawka [2003] 6 NWLR (Pt. 815) 184@210. He maintained that the case of the Claimant is clear to the effect that a certain Captain Oremosu, an officer of the Defendant had coerced her to sign the said agreement. It is his position that the Defendant brokered the agreement in their office which was witnessed by of their officers and which goes to show that the Defendant was not just an arbiter as it would want the Court to believe through Exhibit K; the defendant was active in the drafting and execution of the agreement. He maintained further that apart from the complaint of duress, the said document was fraudulently executed because a careful perusal of the documents in this case particularly, Exhibits A and H, would reveal that the same sign or mark was used on both documents. Exhibit A was deposed to by the deceased MWO Alagba Monday John himself which sign thereon is his authentic signature, which is also visible and conspicuous on other documents, especially those submitted by the Defendant. However, Exhibit H, which was supposed to be executed by one Mrs Mary Alagba, who claimed to be another wife of the deceased Monday John Alagba, carries the replica of the deceased’s signature and which according to Claimant was appended on behalf other wife by one Idowu, who claimed to be the son of the deceased. He urged the Court to hold that Exhibit H was executed by the Claimant under duress and that the forgery of signature thereon renders the document unenforceable and is therefore null and void.

 

14. On issue two, learned counsel submitted that what is clear from the facts before the Court is that Captain Oremosu was acting in his official capacity at the time. He was carrying out the instructions of the Defendants in order to ensure that the other wife with 6 children, got two-thirds of the deceased airman’s entitlements. He posited that none of these facts were denied by the defendant which means that these facts have been admitted by the defendant. He submitted that it does not lie in the hands of the Defendant to broker any negotiation, meeting, arrangement, compromise, agreement on the distribution of the estate of a deceased officer who died intestate but with a named his next of kin. He maintained that the Armed Forces Act has delimited the roles of the Defendant in the distribution of the assets of a service airman that dies intestate, especially one with a next-of-kin. It is his position that the Defendant had no power to collect monies from the Claimant as the defendant is not a named as beneficiary of the Estate of the deceased and that having collected monies unlawfully from Claimant, they must return it to the Estate of the deceased airman. He urged the Court to so hold.

 

15. In respect of issue three, learned counsel posited that since the date of execution of the agreement in Exhibit H and the notification by the said Group Captain that the remaining benefits have been successfully processed, nothing has been paid to the state of the deceased. He submitted that Claimant couched relief 6 the way it was done because of the uncertainty as to the outstanding amount remaining after the sums that have already received. He submitted further that the sum of N9,100,000.00 (Nine Million, One Hundred Thousand Naira) claimed in relief 6 is a rounded-up estimate of the difference between N17 million as disclosed by Commander Emmanuel to the Claimant less than N8 million received on October 5, 2016. He posited that prayers 2 & 3 were sought by Claimant in order to for the Defendant give account of the outstanding sum and to aid the Court in arriving at the actual amount in their custody but the Defendant has refused to provide the requested information before the Court. He urged the Court to do substantial justice by awarding either of both amounts as the remainder of the death benefits of the deceased.  He submitted that where a claimant is not certain as to the exact amount due as monetary compensation, the Court can make the determination because the purpose of awarding monetary compensation is not to award the exact amount which the person lost but to put a person who has been injured in the same position as he would have been if he had been wronged. He cited in support the case of Sun Insurance Plc. v. Adegoroye [2003]11 NWLR (Pt. 831) 379@ 401. He urged the Court to resolve this issue in favour of the Claimant.

 

16. With regards to issue four, it is counsel’s submission that the defendant sought to justify its actions in Exhibit K. It is his position that there are contradictions between exhibits K and F2. That while in Exhibit F2, the Defendant claimed that “one of the daughters of the first wife was listed [by the deceased officer] as Alternative NOK”, while in Exhibit K, they stated that the alternative Next of Kin is the Claimant, while her daughter was listed as the Next of Kin in the last Annual Performance Evaluation Form the deceased airman submitted in 2014, before his demise in 2015. He posited that with Exhibit K, the position of the Claimant’s daughter as the Next of Kin and the Claimant as the alternative Next of Kin are not in dispute which fact is also corroborated by the Confidential Message contained in the Additional Documents forwarded by the defendant. He posited also that Claimant had vehemently opposed the Defendant’s assertion that the said Mrs Mary Alagba and her children were ever named Next of Kin by the deceased as the document shown to her was not signed. He submitted that the defendant despite being served a Notice to produce in line with Order 11 of the Rules of this Court have failed to produce the Blue Book which Claimant had relied on. He submitted that Form 56 which was forwarded by the defendant as part of the additional documents to the Court was not pleaded and so not reliable. It is his position that assuming but without conceding that the document is relevant to the fact in issue, the information contained therein is now stale, since the deceased officer updated his Next-of-Kin and Alternative Next-of-Kin information in his Performance Evaluation form of 2014-2015 before he died. He maintained that the Defendant cannot approbate and reprobate at the same time. By recognizing Claimant and her daughter when it was convenient to process the benefits, and then refuse to recognize them when it came to sharing the money. He maintained that the applicable provision to the fact in issue is Section 275 and not 277, since the deceased officer named his Next-of-Kin in his latest Performance Evaluation Form of 2015. He maintained further while relying on the case of Azubuike v. Govt., Enugu State [2014] 5 NWLR (Pt. 1400) 364 @ 402 that where a statute prescribes a duty to be performed in a particular manner, that duty can only be carried out in the manner prescribed by the statute.  It is position that it is erroneous for the Defendant to assume a power they did not have and share the benefits of the deceased officer in any ratio whatsoever, since the deceased officer had named his daughter as is next of kin. He urged the court to hold that the Defendant had no power to determine how the Estate of a deceased Airman who named his Next-of-Kin should be distributed and that if anyone claims to be entitled to any part of the estate of the deceased Airman, he should approach a court of law and seek appropriate redress.

 

17. In respect of issue five learned counsel submitted while relying on the case of E. B. Plc, Awo Omamma v. Nwokoro [2012] 14 NWLR (Pt. 1321) 488@ 515 that Where the Court adjudges that a wrong has been done to a litigant, such a litigant is entitled to damages for their loss and suffering. He submitted that by the unchallenged evidence of Claimant, the Defendant through it officers have made her travel from her base at Ibadan, Oyo State, to Abuja, then Lagos, several times in pursuit of the claims. He also maintained that Claimant stated how the Defendant’s officers arrested her brother, intimidated her father and cousin and threatened her life in respect of the Estate of the deceased Airman and how she has been unable to provide food, shelter and clothing to her daughter, the Next of Kin of the deceased Airman who has not been to school for over a year. He submitted that without doubt Claimant is entitled to damages.

 

 

18. In continuation of his submissions, learned counsel on behalf of the Claimant submitted that the crux of the first issue in the defendant’s final written address is that the Claimant is not entitled to the claims because she had inadvertently provided her personal account for the first payment, and thus she did not come to equity with clean hands as she was fraudulent. He submitted that the Claimant is an illiterate as her Statement on Oath has an illiterate jurat. He posited that the Defendant also confirmed in their Additional Documents, page 200, that she is an illiterate, who did not understand the responsibilities of a Next-of-Kin. He submitted that Claimant merely believed that it was perfectly normal for her to provide her personal account for the payment of the 3-months’ salary and that when she was corrected she never presented her personal account for any future payments. It is counsel’s position that it is unfortunate that the Defendant would hinge their entire defence on a simple error made by an illiterate whom they confirm lacked understanding of the concept of a Next-of-Kin. He submitted that the Defendant had withheld vital documents that would have aided the Court in dealing with this case fairly. One of such documents is the Blue Book, which we have described and requested for. Also, the latest Performance Evaluation Form for 2014-2015. He maintained that even where the Court holds that the action of the Claimant amounts to fraud, it does not lie with the Defendant to complain as it is not aggrieved by the fraud because it is not an aggrieved person within the definition of the law to seek redress in Court. He cited in support the cases of Ekaneia v. Akpm [1991] 8 NWLR (Pt. 211) 616 and Odedo v. INEC [2008] 17 NWLR (Pt. 1117) 554. He submitted that this suit is not a personal suit of the Claimant. She sues in her capacity as an Administrator, and on behalf of the entire Estate of the deceased and the fact that she purportedly acted fraudulently in her personal capacity should not foreclose the entire Estate of their right to justice.  He urged the Court to discountenance the argument of the defendant under this issue.

 

19. Also, learned counsel submitted that the Armed Forces Act does not impose any duty on the Claimant. The Defendant completely misapplied the law when it argued that the Claimant’s refusal to comply with Section 277(2) of the Armed Forces Act is a failure to perform a condition precedent. He submitted that the Section only apply to the Defendant, only in a situation where the deceased officer did not name a Next-of-Kin.

 

20. On the 1st day of April, 2021, learned counsel on behalf of the defendant filed a Reply on the points of law wherein he submitted that facts admitted need no further proof and relied on the case of Lawal v. Amusa [2009]All FWLR (Pt. 485)1811 to say that Claimant had admitted vide paragraph 7.8 to 7.11 of her final written address that the provision of the law cited by the defendant was relevant and applicable to the case at hand. He submitted that Claimant having aligned with the provision of Section 277 corroborated by Section 275 of the Armed Forces Act cannot blow hot and cold at the same time. He relied on the cases of Aderonpe v. Eleran & Ors, supra and Ude v. Nwara, supra. He also submitted while relying on the case of Osaseren v. FRN, supra that equity follows the law. He posited that the Next of Kin of a service man is sacrosanct in service laws and is the only one entitled to received money of a deceased officer thereunder and that a next of kin is the administrator of the Estate of the deceased and not the sole beneficiary where there are other contending parties. He submitted while relying on the case of Buhari v. INEC [2009]All FWLR (Pt. 459)419@483 that the Claimant having admitted in issue four the Sections relied on by the defendant cannot deny same. He submitted that the Court is not a Father Christmas and cannot grant the Claimant and her daughter additional benefits because the deceased Airman only recognized the Claimant’s daughter as one of his Children.

 

21. Learned counsel submitted that from the contemplation of Section 275 (2) of the Armed Forces Act, records of service men must be updated periodically and that the even if the enclosed Next of Kin Form 1201 had Claimant and her daughter as the Next of Kin, that cannot supersede the authenticated Record of service. He submitted that the deceased Airman having not reported the alteration he made to his Next of Kin Form by the inclusion of the names of Claimant and her daughter to the appropriate authority in line with Section 275 (2) of the Armed Forces, and as such are not his Next of kin. He submitted that the Court is not a Father Christmas to give a person what he or she is not entitled to and the Court cannot entertain a case by a Claimant who cannot show how his or her legal rights are affected. He cited in support the case of Fawehinmi v. Inspector General of Police [2002]7 NWLR (Pt. 767)606.  He also submitted that mandatory provisions of the law must be obeyed. He relied on the case of Mako v. Umoh [2010]8 NWLR (Pt. 1195)82@107-108, Paras H-B. He submitted that the provisions of Section 275 and 277 are mandatory and as such must be obeyed. He urged the Court to resolve the issue of damages in favour of the defendant as damages are awarded as of right and not to gold diggers. He submitted that Claimant is not entitled to damages.

 

22. On the 18th April, 2023 when this matter came up for adoption of parties final written addresses, learned counsel on behalf of the defendant during his adumbration on the final written address submitted that the Originating Complaint was not signed by either Claimant or her counsel and as such same is not competent. After learned counsel had adopted his Reply on the points of law, the Court adjourned the matter for judgment to 10th July, 2023.

 

          COURT’S DECISION

23. Let me at this stage indicate that I will consider the objection raised by the learned defence Counsel in the open Court on the day of adoption of the final written addresses of parties as regards the non-signing of the Originating process first before even attempting to take a look at the Notice of Preliminary Objection filed by the defendant to the jurisdiction of this Court on the ground that this Court does not have power to entertain the claim of the Claimant as same is outside the Court’s jurisdiction. Subsequently, I will explain my reason for adopting this procedure in the decision part.  As stated supra learned defence counsel had raised the issue of the non-signing of the Originating process and submitted that same has made the Originating process incompetent. However, it is quite disheartening that learned counsel did not even refer this Court to any statutory or judicial authority on the issue so raised orally in Court. This act is unacceptable and should not be encouraged. The apex Court per Uwais JSC (Rtd) in the case of African Reinsurance Corporation v. JDP Construction (Nig) Ltd [2003] LPELR-215(SC)1@22-23 para. C has held that it is the duty of counsel to argue the case of his client convincingly and assist the Court with relevant authorities. The Court also stated that a Counsel should not surprise his opponent by not citing authorities in support of his case but relying on the Court to do his duty of researching for authorities in support of his client's case and that failure of such shows laziness and arrogance on the part of Counsel. The failure of learned counsel in this instant to refer the Court to any authority burdened the Court with the duty of searching for authorities on an unsigned Originating process.

 

24. Howbeit, there is no doubt that the question of non-signing of the originating process as raised orally by learned defence counsel in the open Court is a question of jurisdiction that goes to the root of the competence of this case. The issue, being a jurisdictional issue, can be raised at any stage of proceedings, including before the Supreme Court for the first time. See Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd & Ors [2021] LPELR-56661(SC)1@ 21-22 paras. E; Controller General Of Prisons & Ors v. Elema & Anor [2021] LPELR-56219(SC)1@24 paras. D; FHA v Kalejaiye [2010] 19 NWLR (Pt.1226) 149@164, Para B. I am mindful of the fact that learned Claimant counsel did not respond to the said objection raised by the defence in the open Court. Rather he sought to come through the back door through an application made to the Registrar of this Court vide a letter dated 28th April, 2021 wherein he was making legal arguments and craving the Court’s indulgence to regularize the said process by signing same and relying on the provisions of Order 5 of the Rules of this Court and the equitable powers of Court. According to learned Claimant’s counsel he could approach this Court by that way since the objection was not raised by the defence by way of motion but viva voce during the adoption of final address. He made a heavy weather of the fact that the defendant did not make a formal application to strike out the suit for non-compliance with the Rules as it was an oral application not supported by any affidavit or evidence and that defence Counsel cannot give evidence from the Bar. He opined that he who comes to equity must do equity and come with clean hands. I beg to disagree with learned Claimant’s counsel because his argument as to the justification for approaching the Court by way of a letter after failing to respond in the open Court and without the leave of Court to come by such means is misconceived. The raising of the objection which goes to the jurisdiction of the Court by learned defence counsel viva voce, does not in any way give learned Claimant’s counsel the leeway to come to this Court by way of a letter and not a motion when he had the opportunity to respond to same in the open Court when the objection was raised, but failed or elected not to respond. In fact, I must make it clear to learned counsel that the law gives the defence the room to raise a question of jurisdiction which is so fundamental like one which goes to the root of the case like non-signing of the Originating process at any stage of the proceedings and same can be made orally without the need for a motion or proper application. I place heavy reliance on the case of Buremoh v. Akande [2017] LPELR-41565 (SC) where the apex Court per Kekere-Ekun, J.S.C has this to say: “The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court's power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotesho (1993) 1 SCNJ 30” [Emphasis mine]. See also these cases; Adieku & Ors v. Tarchir [2021] LPELR-53300(CA)1@36-38 paras. D; Sami v. APC & Ors [2019] LPELR-48045(CA)1@64 paras. A; Salisu & Anor v. Mobolaji & Ors [2013] LPELR-22019 (SC)1@25-26, Paras D-A. Thus, since the law gives learned defence counsel the right in view of the fundamental nature of the issue raised to do so orally, learned Claimant’s counsel ought to have responded to same orally in the open Court or ask for a date to formally address the Court on same or file a motion seeking leave to address the Court on the question of jurisdiction raised. He cannot under any guise be writing a letter to this Court through the back door after having failed to address the issue raised. It is absolutely bad practice for counsel to be writing a letter to the Registrar of this Court and therein be making serious arguments of law in response to a question of law that was raised openly in the Court room. I will nonetheless in the spirit of fair hearing and doing substantial justice consider the arguments raised in the said letter written to the Court since it now forms part of the Court’s record.

25. I will now proceed to explain why I adopted the procedure of considering the objections first before even trying to delve into the merits of the case. It is because the Courts have over time restated the principle of law that the Court in determining a case where its jurisdiction is challenged must first consider the question of jurisdiction and resolve same before it delves into the merit of the case at hand. See Gonimi v. Butu & Ors [2022] LPELR-56911(CA)1@ 30-31 paras. F; Mustapha & Ors v. Adenopo & Ors [2020] LPELR-51409(CA)1@20-21 paras. D; Persons, Names Unknown v. Sahris Intl Ltd [2019] LPELR-49006(SC)1@27 para C. Again, if this Court decides that its jurisdiction has not been activated by the non-signing of the Originating process as contended by the defendant and as such declines jurisdiction then there would be no vires to determine the Notice of Preliminary Objection filed to the suit of the Claimant which bothers on the jurisdictional scope of the powers of this Court talk less of considering the merits of the case. The above informed the reason I adopted the procedure of dealing with the objection first and deciding it one way or the other before going into the merit of the case if necessary.

 

26. By the provisions of Order 6 Rule 1 (2) of the National Industrial Court (Civil Procedure) Rules, 2017, each copy of originating process shall be signed by the claimant suing in person or by the Counsel otherwise and shall be certified after verification by the Registrar as being a true copy of the original process filed. Similar provision as this is contained in the Rules of other Superior Courts of record in Nigeria. The operative word is ‘shall” which connotes mandatory. In the case of Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC)1@36 para. A, the Apex Court per Muhammad JSC held “An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.” [Emphasis mine]. A General Form of Complaint is an initiating Originating process by which the jurisdiction of this Court can properly be invoked by a person or party who intends to activate the judicial process of the Court to seek for reliefs against another. It is one of the modes of commencing an action in this Court as required by Order 3 of the Rules of the Civil Procedure Rules of this Court 2017. A valid General Form of Complaint is one of the due processes of law by which the jurisdiction of the Court can properly be invoked.

 

27. Learned Claimant’s counsel had stated in his letter that the Original Complaint dated 8th of July, 2020 was duly signed and issued in compliance with the Rules of Court, but that the Amended Complaint was not signed. I have taken my time to look through the Record of the Court to see whether or not the General Form of Complaint which is the Originating process was signed or not. It must be stated that Courts are bound by their records and no other. See Owoeye v. Oyinlola & Ors [2012] LPELR-7958(CA)1@17 paras. F-F; Leaders of Company Ltd. & Anor v. Bamaiyi [2010] LPELR-1771(SC)1@ 6 paras. D and; Enechukwu v. Nnamani [2008] LPELR-4111(CA)1@46 paras. B-B. From the records of this Court, the Original General Form of Complaint was both dated and filed on 13th July, 2020 and not 8th July, 2020 as posited by counsel. It is equally clear from a painstaking perusal of the record of the Court that both the Original Complaint dated and filed 13th July, 2020 and the Amended Complaint filed a year after on 28th July 2021 were not signed by either learned counsel or Claimant as required by the law.

 

28. The Apex Court in the case of Aya v. Nkanu [2022]11 NWLR (Pt. 1840)157@184-185, Paras D-D held that since the writ of summons (General Form of Complaint), is a one way or mode of commencing action in this Court, which is provided for in the Rules of the Court  As an initiating or originating process for the invocation of Court’s jurisdiction, a writ of summons (General Form of Complaint) is the foundation and the process which gives life to a valid action before a Court. A document or a writ which is not signed, does not have any efficacy in law. It is worthless and a worthless document cannot be efficacious in law. On the basis of the principle of ex nihilo nihil fit, since there was no valid or competent writ of summons in the first place, no valid statement of claim could be subsequently added to the incompetent writ of summons to revive and resuscitate it. The writ from the date of its filing was incompetent and dead-on arrival. The Court went further on page 186 of the judgment to hold that an unsigned process, particularly originating process is a worthless document which does not have any efficacy in law. This is because, a document which is not signed has no origin in terms of its maker. Such a process or document which is not traceable to any known author, may be said to be of spurious origin, therefore is incurably bad and cannot be remedied. Since the originating process used for the commencement of the suit before the trial Court (the writ of summons) was not signed either by the respondents or a Legal Practitioner, as their counsel, in line with the requirement of the Rules of Court, the suit was incompetent ab initio thereby depriving the trial Court as well as the Court of Appeal and the Supreme Court of the requisite jurisdiction to adjudicate over its merit. See also the cases of M.C.C. (Nig) Ltd v. COSEDA (Nig) Ltd [2018]11 NWLR (Pt. 1629)47@58, Paras A-B; Udoebi v. Udousua [2017]5 NWLR (Pt. 1559)501@511, Paras F-H, 512, Paras B-D. The above position of the law which is obviously based on the age-long principle that an unsigned document is incurably bad. See Nnalimo v. Elodumuo [2018]8 NWLR (Pt.1622)549@561, Para E. Applying the above principle to this case, the General Form of Complaint being an Originating process must be signed by either the Claimant or her counsel failure of which it becomes incurably bad and as such made the suit of the Claimant incompetent and liable to be struck out.

 

29. One may want to argue that what of the Statement of facts accompanying the said Originating process which was signed and that such signature on the statement of facts cures whatever defect as to signature in the General Form of Complaint. The Apex Court in the case of Buhari v. Adebayo [2022]13 NWLR (Pt. 1848)533@584-585, Paras E-D has held that as the name implies an originating process is a process used to commence an action in law Court and that the statement of Claim (herein as statement of facts) which accompanies the Originating process remains a mere accompaniment which cannot stand on its own without the Originating process. The Court went further at page 571, Paragraphs A-C, 581, Paragraphs D-E and 589, Paragraphs D-E to hold that a statement of claim (herein as statement of facts) properly endorsed cannot save a defective writ of summons (herein a General Form of Complaint) because a Writ of summons can come to life without a Statement of Claim but the latter cannot be alive without the former. As such, where the Writ (herein as the Complaint) as the Originating process which is the foundation of a suit is defective, the plaintiff cannot rely on the statement of claim (herein as Statement of facts) to cure the defective writ of summons.

 

30. Learned Claimant counsel had opined in the letter that the objection raised is one that bothers on technicality and the failure of counsel to sign the originating process does not have any bearing on the rights and interests of the parties in the substance and justice of the suit. He maintained that allowing the Counsel to regularize same will not prejudice the interest of the defence. He further argued that equity regards as done that which ought to be done and that the Court should not visit the sin of counsel on the Claimant. It is true that this Court is both a Court of equity and law, the position of the law which has gained popularity is that equity aids the law, and where the law has clearly made provision which goes to the very root or foundation of process as in this instance the Complaint, equity cannot rewrite the wrong. Equity, the law is also trite, aids the vigilante and not the indolent/slothful. Learned Claimant’s counsel filed first the General Form of Complain and later the amended Complaint without signing both. Assuming, counsel made a mistake in the first instance when he filed the GFC, how could he explain the unsigned amended Complaint which was filed later. Let me say that the Courts have held severally that the issue of signing and endorsement of an originating process by a Legal Practitioner, where the Claimant sues with one as in the instant case, is a requirement of substantive law, and not of procedural law; that it cannot be waived as it is not a mere irregularity and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and that it is so serious an issue that can be raised even at the Supreme Court for the first time. See; Mario Jose Enterprises Ltd & Anor v. Dangado [2021] LPELR-53215(CA)1@ 13 paras. B; Orok v. Eta [2021]12 NWLR (Pt. 1790)350@ 375-376, Paras F-A; Salami v. Muse [2019] LPELR-47038 (SC)1@8-19, Para B; Oliyide v. Obafemi Awolowo University, Ile-Ife [2018] 8 NWLR (Pt 1622) 549 and; Braithwaite v. Skye Bank Plc [2013] 5 NWLR (Pt 1346) 1. Thus, the question is not just one of procedural defect but one of substantive fundamental defect which goes to the very root or foundation of this suit and as such not an issue of technicality and whether or not the defendant would be prejudiced by the regularization of same at this stage is a non-starter.

 

31. Admittedly, as pointed out by learned Claimant’s Counsel in the letter, by the provisions of Order 5, particularly Rule 1 thereof of the Rules of this Court failure to comply with any of the provisions of the Rules may be treated as an irregularity and the Court may give any direction as it thinks fit. However, I must say that the provisions relate to when there is a procedural defect and not when there is defect as to the substance of the suit occasioned by the non-signing of the Originating process like the General Form of Complaint which goes to the root of the action as stated supra. I am aware that Agim J.SC in his dissenting opinion in the case of Aya v. Nkanu, supra at pages 192-193, Paragraphs H-C while considering the effect of a similar provision to the provision in Order 5 Rule 1 of the Rules of this Court which in that case was Order 11 Rule 1 of the High Court of Cross River State (Civil Procedure) Rules , 2008 in relation to a similar issue that bothers on non-signing of Originating process, held that since the Rules says that such failure may be treated as an irregularity since the Rules says so especially where it was not raised timeously in that case but in the brief of argument at the Court of Appeal. The above opinion of Agim JSC is a dissenting opinion of one against four. Notwithstanding, Agim’s JSC position, the majority decision says such process is incompetent and that is the extant decision of the Apex Court on this subject. Courts have held that a dissenting opinion however powerful and articulated is not the judgment of the Court and that the majority decision is the judgment of the Court and which is what is binding. See; OSIEC & Anor v. A.C & Ors [2010]LPELR-2818(SC)1@83, Para E; Awokunle v. NEPA [2007]15 NWLR (Pt. 1057)340@ 351-352, Para H-A; FGN v. Zebra Energy Ltd [2002] 18 NWLR (Pt. 798)162 a@96, Para F and; Orugbo v. Una [2002]LPELR-2778(SC)1@30, Para C. This Court is bound by the majority decision in Aya v. Nkanu, supra which without mincing words is to the effect that an unsigned Originating process as in this instance, is incompetent and cannot give Court the necessary vires to entertain the case.

 

32. In view of the circumstances of this case, the Court can obviously not go ahead to consider the merits of this case. The problem encountered in this case was caused by lack of due diligence of learned counsel. Thankfully, this case is not one which can be caught up by statute of limitation because on the authority of Sifax (Nig) Ltd & Ors v. Migfo (Nig) Ltd & Anor [2018] LPELR-49735(SC)1@72-80, para. A; Claimant can come back after learned counsel has done the needful with the Originating process. Howbeit, in view of all reasoned supra, this Court finds that the case of Claimant is at this stage incompetent and liable to be struck out. The Claimant’s case is accordingly struck out for being incompetent.

 

 

 

33. Judgment accordingly entered

 

                                   

                                                                        Hon. Justice O.O. Oyewumi

                                                                                    Presiding Judge