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His Lordship, Hon. Justice I. J. Essien of the National Industrial Court of Nigeria, Enugu Judicial Division on Wednesday 23rd May in a ruling upheld preliminary objection and dismissed suit in a case of UGWU SIMON PETER O. Vs. ENUGU STATE COLLEGE OF EDUCATION & 2 ORS for incompetent.
The defendants/applicant by a notice of preliminary objection dated 30th November, 2017 and filed on the 5th December, 2017 sought an order of this court striking out this suit on the grounds that the suit is incompetent and cannot activate the jurisdiction of this court because there has been no compliance with section 11(2) of the State Proceedings Law Cap 146 Revised Laws of Enugu State 2004 and Order 3 Rule 23 (1) and (2) of the rules of this court 2017.
The preliminary objection is also founded on the grounds that the suit is incompetent for non joinder of necessary parties and No reasonable cause of action is disclosed against the defendant/ applicant.
In his written submission the learned defendant’s counsel formulated one issue for determination to wit: “Whether this suit is competent”
On this issue the learned defendant counsel Sir, Ben. C. Ezugwu Esq. argues that the defendants are public officers appointed to serve the Enugu State College of Education (Technical) by the Governor of Enugu State pursuant to the provisions of section 10 (1) (2) of the Enugu State College of Education (Technical law) 2006 and section 15 of the Enugu State College of Education (Technical) Amendment Law 2013.
He stated that the defendants were not served with pre-action notice. He also argued that the claimant also failed to comply with the mandatory provisions of Order 3 Rule 23 (1) (2) of the National Industrial Court Rules 2017.
He urged the court to declare the process incompetent.
The claimant counsel, Charles Ugwu Esq. in his written submission He argued that for the appearance of the defendant to be proper, the defendant must of necessity comply with the above provisions of the rules of this court. He argued that the defendant neither sought nor obtained leave of court not to comply with the mandatory provisions of the above cited rules of this court.
On the main plank of the objection the learned counsel for the claimant respondent argues that the defendant’s claim that they are entitled to pre-action notice is unfounded. That for the defendant to succeed, they must proof that they are public officers.
After reviewing the argument of the parties, the Court Presided by Hon. Justice I. J. Essien expressed thus;
“I have carefully considered the submission of counsels in their written submissions, the affidavits and the oral adumbration in court at the hearing of this application.
First it is important to look at the nature of the preliminary objection. In other words the objection challenges the competency of the suit. I think when an objection challenges the competency of the suit that objection must be determined first before any further step is taken in the matter.
If the competence of the suit itself is faulty or the suit is standing on a faulty foundation the claimant cannot proceed on this faulty foundation.
The defendant contention is that this notice required under this section was never served on the defendants. The claimant argues that the defendants are not public officers.
I have examined the originating process filed on the 29th June, 2017 and all the annexures, I have not seen any pre-action notice front loaded by the claimant in compliance with the above quoted provisions of this rule. This being the case, the claimant’s originating process is standing on a faulty foundation. The suit is incompetent.
The law is that where a suit is incompetent the jurisdiction of a court cannot be activated.
On the strength of this authority, it is the decision of this court that this suit is incompetent and accordingly, this suit is hereby struck out for being incompetent.
