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[Entitlement Claim] Industrial Court strikes out suit against Nigerian firm for incompetency

671 Tuesday 12th January 2021

His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court, Abuja judicial division has struck out the suit filed by Mr. Mark Omoaka against Sany Nigeria Company Ltd for being incompetent.

The Court held that the originating process commencing the suit having not been franked by counsel nor signed by the claimant before its filing has rendered the process incompetent that it is not every mistake or omission of counsel that can be regarded as negligence capable of being overlooked by the court.

From facts, the Claimant’s- Mark Omoaka had contended that he worked with the firm for 10 years before the termination of his employment in 2017, that by virtue of his contract agreement, his entitled to payment of two years’ salary, one month salary in lieu of notice and rent for one year amongst others.

In defence, the firm maintained that Mark’s is not entitled to any of the reliefs being sought that the claimant did not serve for 10 years, that he was dismissed from service in 2010, and reabsorbed via fresh appointment letter in the year 2010.

The defendant counsel A. D. Faruk, Esq averred that the purported contract agreement did not emanate from the firm that the action of the claimant is ill-conceived, unmeritorious, and should be dismissed with substantial cost.

Learned counsel raised an objection and submitted that the Originating Process filed by the complainant is incompetent for want of signature of either the complainant or his legal practitioner urged the court to strike the suit for lack of jurisdiction to entertain same.

In opposition, claimant’s counsel Isaac Enamudu Esq contended that the claimant has proved his case with preponderance of the evidence that non-signing of the complaint will not change the character of the suit, argued that mistake of counsel should not be visited on litigant that the raising of objection was in bad faith and it is a technicality to defeat justice, urged the court to dismiss the objection and grant the reliefs sought.

Delivering judgment, the trial Judge, Justice Sanusi Kado held that it is a requirement of the law that the originating process commencing an action must be signed either by the claimant or counsel representing the claimant.

“Where the jurisdiction of a court is put to question, it becomes imperative that the controversy should be resolved for giving life to the case in issue. Where the jurisdiction of a court is in limbo, the adjudication must be put on hold pending the determination thereof.

“This is a fundamental vice or omission on part of counsel and his counsel. It is never an irregularity that can be waived, nor is it within the province of mistake or inadvertence of counsel, that cannot be visited on the litigant, as it is not every mistake or omission of counsel that can be regarded as inadvertence capable of being overlooked by the court.

“Signing of the originating process is a sine qua non to the validity of the action, absence of which rendered the entire suit incompetent. The determination of this issue has ended the life of this suit and can never breathe again.”

For full judgment, click here