IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: Wednesday, 30th October 2024      SUIT NO. NICN/LA/209/2023

 

BETWEEN

 

MR. RAPHAEL UCHEGBU                                           ...        CLAIMANT/RESPONDENT

 

AND

 

BI-COURTNEY AVIATION SERVICES LIMITED            …         DEFENDANT/APPLICANT

 

RULING

 

1.        The Claimant commenced this suit by General Form of Complaint on 27th July 2023, and sought the following reliefs:

 

a.      An order of this Honourable Court directing the Defendant to pay the sum of N49,552,665.75 [forty-nine million, five hundred and fifty-two thousand, six hundred and sixty-five naira seventy-five kobo] only being long service/gratuity due to the Claimant after serving 14 years 7 months with the Defendant.

 

b.     An order of this Honourable Court directing the Defendant to pay N679,579.42 [six hundred and seventy-nine thousand, five hundred and seventy-nine naira, forty-two kobo] being outstanding leave allowance.

 

c.      An order of this Honourable Court directing the Defendant to pay the sum of N6,512,636.07 [six million five hundred and twelve thousand, six hundred and thirty-six naira seven kobo] only being [the] Claimant’s allowance for acting as Head of Business for 23 months.

 

d.     An order of this Honourable Court directing the Defendant to pay the sum of N2,400,000.00 [two million four hundred thousand naira] only being cash in lieu of non-use of status car for 24 months.

 

e.      An order of this Honourable Court directing the Defendant to pay the sum of N1,359,158.83 being October 2022 salary on termination of [the] Claimant’s employment on the 14th of October 2022.

 

f.       An order of this Honourable Court directing the Defendant to pay the Claimant N4,077,476.50 [four million and seventy-seven thousand, four hundred and seventy-six naira fifty kobo] being cash in lieu of 3 months’ notice of termination.

g.      General and exemplary damages in the sum of N4,000,000.00 [four million naira] only.

 

h.     The cost of instituting this suit.

 

i.        And for such further order[s] as this Honourable Court may deem fit to make in the circumstance.

 

2.        Upon receipt of the originating process, Defendant entered an unconditional appearance and filed a statement of defence and counterclaim on 8th December 2023. On 29th January 2024, Defendant filed a motion on notice for enlargement of time to file the statement of defence and accompanying processes which was heard and granted on 17th April 2024. After that, the case was adjourned to 26th June 2024 for trial. The Claimant filed his reply to the statement of defence and defence to counterclaim on 14th May 2024 and a motion on notice to regularise the process on 11th June 2024. On 21st June 2024, Defendant filed a motion on notice to amend the defence processes, and on 24th June 2024, Defendant filed a notice of preliminary objection. When the matter came up on 26th June 2024 for trial, the Claimant’s counsel asked for an adjournment to respond to Defendant’s processes. The case was adjourned to 24th July 2024 and then to 2nd October 2024. On 16th July 2024, the Claimant filed a counter affidavit and a motion on notice to regularise it. Defendant filed a further affidavit and reply on points of law on 24th July 2024. At the resumed hearing on 2nd October 2024, the Claimant argued his motions on notice dated 11th June 2024 and 16th July 2024 for enlargement of time, which were granted as prayed. Defendant also moved the application for leave to amend the defence processes, which was also granted as prayed. After that, parties argued Defendant’s notice of preliminary objection and ruling was reserved for 31st October 2024 which time was abridged to 30th October 2024 because of the Court’s other engagements.

 

3.        By notice of preliminary objection brought under Paragraph 3[2][A] and 3[3][B] of the National Industrial Court of Nigeria [filing of applications/motions in Trade Union matters and marking of exhibits] Practice Directions [No 1] of 2022 [“the Practice Direction”], and under the inherent jurisdiction of the Honourable Court, Defendant prayed the Court for an order striking out the suit for being incompetent, and for such further order[s] as the Honourable Court may deem fit to make in the circumstances, on the following grounds:

 

a.      The Claimant instituted the instant suit via a complaint [Form 1] dated 27th July 2023.

 

b.     In support of its complaint, the Claimant filed the accompanying processes required for the commencement of the suit.

 

c.      The Practice Direction of the Honourable Court provides for the rules guiding the filing of pleadings by parties.

 

d.     The Practice Direction provides, inter alia, at Paragraphs 3[2] that:

 

i.    In the case of a Claimant, the statement of facts and the witness[es] statement[s] on oath must clearly indicate all the document[s] to be relied upon at the trial of the case and attach same. The attached document[s] must be marked serially, in the manner done for originating summons.

 

ii.   That part of the document e.g. paragraph[s], page[s] or part[s] of the document[s] to be so relied on in the attached document[s] must be concisely referred to and be appropriately marked as to be discernable in terms of the fact[s] being proved.

 

iii. Where a Claimant intends that a frontloaded document will be tendered in evidence at the hearing of a matter, such Claimant must indicate if the original of such frontloaded document will be available/produced for inspection at the hearing of the matter.

 

iv. Where the document so frontloaded is such that will require the laying of a foundation before it can be admitted in evidence, such Claimant must indicate so and must lay such necessary foundation in the statement of facts and witness statement of oath.

 

e.     The Practice Direction also provides penalties for non-compliance with the provisions of the Practice Direction.

 

f.       The Claimant/Respondent ["Claimant"] has failed to indicate all the documents to be relied upon in accordance with the procedure/form set out in the Practice Direction, specify and mark the exact parts of the documents to be relied upon, indicate if the document to be tendered are original or photocopies, or lay any foundation where the intended documents are photocopies.

 

g.      The Claimant’s pleadings, having breached the provisions of the Practice Direction, is incompetent and liable to be struck out.

 

4.        Defendant filed 7 paragraphs affidavit in support of the preliminary objection sworn by Mr. Peter Akinjo, a litigation officer in Babalakin & Co., Defendant's Solicitors, and a written address of even date. The Claimant filed 9 paragraphs counter affidavit which he swore on 16th July 2024 and a written address of same date. In response, Defendant filed 12 paragraphs further affidavit sworn by Mr. Kayode Michael of Babalakin & Co. and a reply on points of law on 24th July 2024. In arguing the counter affidavit, learned counsel for the Claimant, Abiola Ogunleye Esq., referred to Order 5 Rules 1 and 2, 6[3] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and submitted that the Court can jettison its rules if it will lead to injustice. Counsel also argued that Defendant has taken steps in the matter and has not suffered any injustice. The Court was urged to dismiss the application. In urging the Court to strike out the suit for incompetence, learned counsel for Defendant, C. A. Allagoa Esq. with Ayomide Ifeoluwa Onimole Esq., argued that there is no time frame to raise an objection.

 

5.        Learned counsel for Defendant raised one issue for determination in the written address in support of the preliminary objection, that is, whether considering the clear provisions of the National Industrial Court of Nigeria [Filing of Applications/Motions in Trade Union Matters and marking of Exhibits] Practice Directions [No.1] 2022, this Honourable Court ought to uphold the Applicant's objection and grant the relief sought by the Applicant. Counsel argued the issue under three sub-issues: non-compliance with the Practice Direction, the Claimant failed to indicate if the original of the frontloaded documents would be tendered at the hearing, and the consequence of non-compliance with the Practice Direction. On the first sub-issue, counsel referred to the cases of Nnalimuo v. Elodunmo [2018] 8 NWLR [Pt 1622] 549 and CBN v. Ubana [2017] 15 NWLR [Pt 1587] 151 at 167, and submitted that jurisdiction is the life wire of every litigation, and the factors that determine jurisdiction are: the subject matter of the case is within the Court’s jurisdiction; there is no feature in the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. It was argued that where the rules of Court or practice direction stipulates a pre-condition for instituting an action, the Claimant must comply with the condition, failing which the processes filed would be incompetent since the Practice Direction has the force of law. The case of Ari v. Yerima [2023] 15 NWLR [Pt 1906] 1 was relied on. It was also argued that a Claimant is required, when filing the statement of facts and witness statement on oath, to comply with the form of identification prescribed in Paragraph 3[2][a] of the Practice Direction, but the Claimant failed to so plead his processes. Counsel argued further that the Claimant’s partial compliance by merely marking the documents to be tendered in the witness statement on oath cannot rectify the breach in the statement of facts since if the pleadings are defective no evidence can be built on it. The cases of Al-Hassan v. Ishaku [2016] 10 NWLR [Pt 1520] 230 at 260 and Anyafulu v. Meka [2014] 7 NWLR [Pt 1406] 396 were cited in support. Therefore, learned counsel contended that the statement of facts is incompetent and liable to be struck out for non-compliance with Paragraph 3[2][a] of the Practice Direction.

 

6.        On the second sub-issue, counsel submits that the Claimant’s processes breached the provisions of Paragraphs 3[2][b], [c] and [d] of the Practice Direction by failing to state the nature of the frontloaded documents sought to be tendered during the trial, and lay necessary foundation, where required, rendering the suit liable to be struck out. Arguing the third sub-issue, and resting on Audu v. Wada [2016] 12 NWLR [Pt 1527] 382 at 394, Hokson & Co. [Nig] Ltd v. UBN [2022] 2 NWLR [Pt 1813] 115 at 126, and Paragraph 3[3][b][i] of the Practice Direction, counsel submits that compliance with the Practice Direction is mandatory and non-compliance renders the processes defective and the suit incompetent depriving the Court of jurisdiction. Thus, counsel argued that the originating processes having been rendered incompetent are liable to be struck out per Paragraph 3[3][b][i] of the Practice Direction, and the Court is not permitted to waive non-compliance as the duty to strike out the suit is mandatory, calling in aid the case of Ibrahim v. Akinrinsola [2022] 18 NWLR [Pt 1862] 455. The Court was urged to strike out this suit per the Practice Direction.

 

7.        Learned counsel for the Claimant also nominated one issue for determination in the written address in support of the counter affidavit, “whether this Honourable Court shall apply its discretion and do substantial justice with respect to the Defendant's application.” Counsel submits that the grounds of Defendant’s objection are unfounded and should be discountenanced because the Practice Direction must aim at ensuring that justice is done, and where it engenders injustice the Court should reject it in the interest of justice, resting on Haruna v. Moddibo [citation not supplied]. Counsel argued that the Claimant complied with the Practice Direction by marking the documents and referring to pages, sections and paragraphs to be relied on in the witness statement on oath and submitted that the application of the penalty prescribed by the Practice Direction will lead to injustice, and the Practice Direction cannot remove the exercise of the Court’s discretion granted to it by statute on the authority of Ikem v. Aisowieren [2010] 1 NWLR [Pt 1174] 147 at 171-172. The Court was urged to exercise its discretion in favour of the Claimant judicially and judiciously against imposition of the prescribed penalty for non-compliance. Counsel also argued that in dealing with general procedural matters, the Court should consider the interest of justice, equity, convenience and the peculiarity of the matter, relying on Order 23 Rules 1 and 2[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 [“the Rules”]. Learned counsel contends that Defendant has not been overreached by the alleged non-compliance having filed its statement of defence more than 6 months before making the application. Counsel argued that while the application is predicated on total non-compliance with the Practice Direction, the facts show substantial compliance with sub-paragraph 2[a] of the Practice Direction. Relying on Order 5 Rules 1 and 2[1] of the Rules, counsel submits that non-compliance with the rules of Court is a mere irregularity, and a party seeking to set aside the process for irregularity must do so within a reasonable time and before he has taken fresh steps in the matter. Thus, learned counsel submits that by filing its statement of defence, Defendant has condoned the alleged irregularity and can no longer complain, resting on Bajoga v. Government of Federal Republic of Nigeria & Ors [2017] LPELR-8924[CA] 10-18. Counsel submits that this application calls for the exercise of the Court's judicial discretion which must be exercised in accordance with the law and judiciously taking into consideration the facts of the particular case, calling in aid Chuwkuebuka v. FRN [2015] All FWLR [Pt 769] 1093 at 1105. Lastly, learned counsel argued that this application is a ploy to delay the speedy trial of the case which the Honourable Court should discourage, relying on Eze v. FRN [2018] All FWLR [Pt 923] 123 at 165 - 166. The Court was urged to dismiss the application for being an abuse of Court process, a ploy to delay fair trial of the case, and therefore grossly incompetent.

 

8.        In arguing the reply on points of law dated 22nd July 2024, learned counsel for Defendant submits that the law is settled that the Practice Direction must be obeyed by parties who present their matters before the Court for adjudication relying on Ali v. Osakwe [2009] 14 NWLR [Pt 1160] 75 and Audu v. Wada [supra]. Counsel reiterated his argument that the Claimant did not comply with the Practice Direction on marking of exhibits, and submitted that the Practice Direction did not specify any time for filing the objection, and the effect of non-compliance is that the Claimant's originating process is incompetent ab-initio and ought to have been rejected by the Registry. Consequently, the subsequent filing of the defence cannot validate the incompetent process since you cannot build something on a nullity and expect it to stand, calling in aid the case of Wakili v. Buba [2016] 13 NWLR [Pt 1529] 323. Counsel argued that “the specific requirements in the Practice Direction are not in any way subject to the provisions of the Rules of the Court. Thus, any defect occasioned by a deliberate failure to comply with the Practice Direction would not be corrected or cured by the Rules of this Honourable Court as the Practice Direction were made for a specific purpose not covered by the Rules.” Therefore, the Claimant's argument that the non-compliance is an irregularity is wrong in law. The Court was urged to hold so. Counsel contends that by arguing that there has been no total non-compliance with the Practice Direction, the Claimant was prevaricating and a party must be consistent in stating his case. The case of Uzoho v. National Council of Privatization [2022] 15 NWLR [Pt 1852] 1 was cited in support. Learned counsel submits that where the Claimant's pleadings do not comply with the Practice Direction, the Court has a duty to strike out the entire suit for non-compliance, resting on Uduma v. Arunsi [2012] 7 NWLR [Pt 1298] 55, noting that this case does not call for the exercise of the Court's discretion since the word used is "shall" which is mandatory. Reference was made to Adams v. Umar [2009] 5 NWLR [Pt 1133] 41. In concluding, counsel submits that the application is meritorious since the Claimant’s process is inherently defective, and urged the Court to strike out the suit per Paragraph 3[3] of the Practice Direction.

 

9.        Undoubtedly, jurisdiction is fundamental to any adjudication, and unless the Court has jurisdiction, whatever it does with respect to a case before it is an exercise in futility. See Obiuweubi v. CBN [2011] 2-3 SC [Pt I] 46 at 91 and Attorney General of Kwara State & Anor v. Adeyemo & Ors [2017] 1 NWLR [Pt 1546] 210 at 239. However, the jurisdiction of a Court is different from the competence of the Court. While jurisdiction is conferred on the Court by the Constitution or statute, a Court is competent when: it is properly constituted with respect to the number and qualification of the members; the subject matter of the action is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; the action is initiated by due process of law; and any condition precedent to the exercise of its jurisdiction has been fulfilled. A Court cannot entertain a case which it has no jurisdiction to adjudicate upon. See Obiuweubi v. CBN [supra] pages 91–94 and Attorney General of Kwara State & Anor v. Adeyemo & Ors [supra]. Indisputably, the Court is properly constituted, and the subject matter of this action is within the Court’s jurisdiction, but the contention of learned counsel for Defendant appears to be that there is a feature in the case which prevents the Court from exercising its jurisdiction, and the case does not come before the Court initiated by due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction. This feature is that the statement of facts and witness’ statement on oath were not marked as prescribed by the Practice Direction which renders the processes incompetent.

 

10.      While Defendant maintained that the Claimant has not complied with the Practice Direction, and by Paragraph 3[3][b] thereof, the suit ought to be struck out, the Claimant insists that he has complied with the Practice Direction, and urged the Court to dismiss the application in the interest of justice. The starting point, therefore, is the Practice Direction. Paragraphs 3[2][a], [b], [c] and [d] of the Practice Direction provide:

 

[2]      Marking of documents/exhibits

 

From the date of this Practice Direction, with respect to all frontloaded documents attached and/or referred to in a Claimant’s statement of fact, Defendant’s statement of defence or reply to statement of defence as well as in the witness statement on oath, I hereby direct as follows:

 

[a]      In the case of a Claimant, the statement of facts and the witness[es] statement[s] on oath must clearly indicate all the document[s] to be relied upon at the trial of the case and attach same. The attached document[s] must be marked serially in the manner done for originating summons.

 

[b]      That part of the document e.g. paragraph[s], page[s] or part[s] of the document[s] to be so relied upon in the attached document[s] must be concisely referred to and be appropriately marked as to be discernible in terms of the fact[s] being proved.

 

[c]       Where a Claimant intends that a frontloaded document will be tendered in evidence at the hearing of a matter, such claimant must indicate if the original of such frontloaded document will be available/produced for inspection at the hearing of the matter.

 

[d]      Where the document so frontloaded is such that will require the laying of a foundation before it can be admitted in evidence, such Claimant must indicate so and must lay such necessary foundation in the statement of facts and witness statement on oath.

 

11.      The above provisions are clear and couched in a peremptory manner. By Paragraph 3[3][b][i] of the Practice Direction “Where a process that does not comply with the provision[s] of this Practice Direction is accepted for filing by the Registry of the Court, the Judge to whom such process is assigned for hearing shall treat such process as incompetent and shall; if the process is a Claimant's statement of fact, reply to statement of defence and/or witness statement on oath, strike out the entire suit.” The effect of non-compliance with the Practice Direction is that the suit should be struck out. I have carefully read the statement of facts and Claimant’s witness statement on oath, and I find as a fact that the Claimant breached Paragraphs 3[2][a], [b], [c] and [d] of the Practice Direction. Specifically, sub-paragraph [a] provides, inter alia, that the attached documents must be marked serially in the manner done for originating summons. It is common knowledge that documents attached to the affidavit in support of an originating summons are identified and marked as exhibits. The documents which the Claimant seeks to rely on were not properly identified and marked both in the statement of facts and witness statement on oath. In addition, sub-paragraph [b] requires that part of the document, that is, paragraphs, pages or parts of the documents to be relied on must be concisely referred to and be appropriately marked. This was not done in this case. See paragraphs 3, 8, 9, 10, 12, 13, 15, and 16 of the statement of facts, and paragraphs 4, 9, 10, 11, 13, 14, 16, and 17 of the Claimant’s witness statement on oath. In Abolade John Olawale v. Eko Electricity Distribution Plc, Suit No. NICN/LA/266/2022, which ruling was delivered on 20th October 2022, page 4, I said this, on the purport of the Practice Direction:

 

The attached document would thereafter be so marked on the list of documents and on the copy of the document.  What is more, sub-paragraph [b] requires that part of the document, that is, paragraphs, pages or parts of the documents to be so relied upon must be concisely referred to and be appropriately marked. This narrows down the evidence a party intends to lead in a case in relation to documentary evidence, and parties and the Court do not have to forage the document to determine which paragraph is relevant to the case. This was not done in this case. In addition, and to obviate objections which clog trial, sub-paragraphs [c] and [d] require that the Claimant states if the original of the attached documents will be available at the hearing, and where photocopies will be relied on to clearly say so and “lay such necessary foundation in the statement of facts and witness statement on oath.” The foundation, as stipulated in Section 89 of the Evidence Act, 2011, must be laid in the statement of facts and witness’ statement on oath, not otherwise.

 

Contrary to the submission of learned counsel for the Claimant, the Claimant only partially complied with the Practice Direction, and whether partial or total, the penalty for non-compliance with the Practice Direction is that the suit should be struck out.

 

12.      Generally speaking, rules of Court are meant to be obeyed, and a party who deliberately ignores the rules of Court does so at his peril. See MC Investments Ltd v. Core Investments & Capital Markets Limited [2012] LPELR-7801[SC] 18-19. In Ila Enterprises Ltd & Anor v. Umar Ali & Co. [Nigeria] Ltd [2022] 18 NWLR [Pt 1862] 501 at 522, the Supreme Court, per Saulawa, JSC, had this to say:

 

Indeed, the law is well settled, that where [as in the instant case], the rules of court specifically and unequivocally provide for a procedure, counsel have no option other than to adhere to the dictates of the rules…. innovations of counsel outside the specific [procedure] will go to no avail. They rather destroy the case of the party. This is because the courts expect counsel to follow the procedure provided for in the rule.

 

However, learned counsel for the Claimant referred to Order 5 Rules 1 and 2[1] of the Rules, and argued that non-compliance with the rules of Court is a mere irregularity, and a party seeking to set aside the process for irregularity must do so within a reasonable time and before he has taken fresh steps in the matter. It was submitted that by filing a statement of defence, Defendant has condoned the alleged irregularity and can no longer complain. Responding, learned counsel for Defendant contended that the Practice Direction did not specify any time for filing the objection, and the effect of non-compliance is that the Claimant's originating process is incompetent ab-initio and ought to have been rejected by the Registry. Consequently, the subsequent filing of the defence cannot validate the incompetent process since you cannot build something on a nullity and expect it to stand. Counsel also argued that the specific requirements of the Practice Direction are not subject to the provisions of the Rules of the Court, and any defect occasioned by a deliberate failure to comply with the Practice Direction cannot be cured by the Rules as the Practice Direction was made for a specific purpose not covered by the Rules. Therefore, the Claimant's argument that the non-compliance is an irregularity is wrong in law, but cited no authority for this proposition.

 

13.     This raises the issue of the relationship between the Practice Direction and the Rules. In Auwalu v. F.R.N. [2018] 8 NWLR [Pt 1620] 1 at 14, the Supreme Court, per Sanusi, JSC, held that “The correct proposition of the law is that the provisions of the Practice Direction cannot override the provisions of the substantive rules of court from which the authority to promulgate the Practice Direction was derived.” Earlier, in University of Lagos & Anor v. Aigoro [1984] NSCC [vol. 15] 745 at 755 – 756, the same Court, per Bello, JSC [as he then was], held:

 

By the combined effect of the definition of “enactment” which “means provision of any law or a subsidiary instrument” under section 277[1] of the Constitution and section 27 of the Interpretation Act 1964, which provides: “subsidiary instrument” means any order, rules, regulations, rules of court or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act”, the Supreme Court Rules 1977 is an enactment while the Practice Directions do not qualify as such. Consequently, a practice direction has no force of law and cannot fetter a rule of court such as Order 1 rule 5 and cannot tie the Court in the exercise of its discretion. Where there is a conflict between a rule of court and a practice direction, the rule must prevail.

 

            The Court of Appeal, per Ogunwumiju, JCA [as he then was], in Oni v. Fayemi & Ors [2007] LPELR-8700[CA] 57 – 58, held that “…excessive weight was given to the provisions of the Practice Directions to the detriment of superior legislations. This is because where, as in this case, Practice Directions are in conflict with the Rules of Court, the Rules of Court must perforce prevail. We are in no way denigrating the need and importance of Practice Directions. In fact, they are tools in enhancing compliance with the rules of Court. However, they must be used by the Courts not only to ensure speedy trials within a reasonable time, they must also be utilised by the Courts to promote the entrenched rights of the parties to a fair hearing under Section 36[1] of the 1999 Constitution.” Therefore, while the Practice Direction commands obedience, it cannot override the express provisions of the Rules.

 

14.      In addition, while it is not in doubt that Paragraph 3[3][b][i] of the Practice Direction renders the non-compliant process incompetent and makes the suit liable to be struck out, the settled rule of law is that a breach of a rule of practice and procedure does not render the proceedings a nullity, but merely an irregularity. Order 5 Rule 1 of the Rules provides that “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.” Moreover, Order 3 Rule 1[1] of the Rules provides that civil proceedings in the Court may be commenced by complaint, originating summons, originating motion, application for judicial review, notice of appeal or petition, and referral from the Minister of Labour and Productivity. Sub-rule 9 provides that the complaint shall be accompanied by a statement of facts, a list of witnesses, written statements on oath of the witnesses, list, and copies of the documents to be relied on. Therefore, a statement of facts, a list of witnesses, written statements on oath of the witnesses, and a list of documents are not originating processes, but accompaniments to the originating process. The General Form of Complaint is a distinct process and initiates the action. See Heritage Bank Limited v. Bentworth Finance [Nig.] Ltd [2018] 9 NWLR [Pt 1625] 420 at 434 and Buhari & Anor v. Adebayo & Ors [2022] 13 NWLR [Pt 1848] 584-585. Therefore, where there is a valid General Form of Complaint, as in this case, the jurisdiction of the Court to entertain the suit is intact; and the Court can exercise its discretion, in appropriate cases, to allow amendment of the offending accompanying processes if doing so will secure substantial justice. See Order 26 Rules 1[1][a] and 3 of the Rules and the case of Bello Adeleke v. Falade Awoliyi & Anor [1962] LPELR-25020[SC] 2-3, where Ademola, JSC [as he then was] enjoined the Court, wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action, to award costs against the delinquent party rather than dismiss or strike out a case for a fault in the proceedings before the hearing of the case. Furthermore, as held by the Supreme Court, in University of Lagos & Anor v. Aigoro [supra], a practice direction cannot fetter the Court in the exercise of its discretion.

 

15.     Order 5 Rule 2[1] of the Rules provides that “An application to set aside for irregularity any step taken in the course of any proceedings, may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.” Therefore, the submission by learned counsel for Defendant that the Practice Direction did not specify any time for filing the objection is untenable as the rules of Court cannot be read in isolation. I have sequenced the steps taken by Defendant after receipt of the offending accompanying processes in paragraph two above. By Order 5 Rule 2[1] of the Rules, Defendant can no longer complain of the irregularity in the Claimant’s processes. In Uchenna v. PDP & Ors [2022] LPELR-59068[CA] 39 – 41, the Court of Appeal held that by filing a process after receiving the irregular process, the innocent party has acquiesced to the irregularity and waived his right to complain. I entirely agree, and hold that by filing the processes enumerated above, and arguing the motion for enlargement of time after receipt of the Claimant’s irregular processes, Defendant has acquiesced to the irregularity and can no longer complain.

 

16.     It is important to add that an order striking out a suit merely suspends it with the party at liberty to re-file it after remedying the defect on the basis of which it was struck out. See Sylvia v. INEC & Ors [2015] LPELR-24447[SC] and Philko Ltd v. Bauchi State Government [2022] LPELR-57418[CA]. Therefore, it is my view that the interest of justice will be best served in granting the errant party leave to amend the offending processes than in striking it out especially since there is a valid General Form of Complaint.

 

17.     Before I conclude, let me make a few comments. First and foremost, the Claimant stated in paragraph 3[vii] of the counter affidavit that Defendant is not entitled to the order sought in the preliminary objection because it “failed to raise the objections in its statement of defence in accordance with this Honourable Court’s Practice Direction”. Learned counsel for the Claimant abandoned this objection in the written address in support of the counter affidavit. Nevertheless, Paragraph 3[2][g] of the Practice Direction provides that “Where a defendant intends to object to the admissibility of a document to be tendered by a Claimant, such objection must be clearly indicated in the statement of defence and witness statement on oath, and state the basis of the objection.’’ Clearly, the objection contemplated by the Practice Direction relates to admissibility of documents to be relied on at the trial, and has nothing to do with non-compliance with the Practice Direction. Therefore, paragraph 3[vii] of the counter affidavit is hereby discountenanced. In addition, the reference to Order 23 Rules 1 and 2[2] of the Rules in paragraph 4.4 of the Claimant’s written address is misconceived. Order 23 of the Rules deals with cases where no provision is made in the Rules on practice and procedure, or where the provisions of the Rules are inadequate, and does not support the Claimant’s submission. Furthermore, the Practice Direction is not intended to be a sword of Damocles dangling over the head of unsuspecting litigants, but a guideline to ease the hearing of cases before the Court. See Ogbeshe v. Idam [2013] LPELR-20330[CA] 26-27. Thirdly, it is worth restating that the Practice Direction has come to stay, and it behooves learned counsel to study the Practice Direction and comply with its stipulations. A party ignores it at his peril. I need not say more. In Abolade John Olawale v. Eko Electricity Distribution Plc [supra], I tried to provide a guide on proper pleading and identification of documents in the statement of facts/defence and witness statement on oath. I said this:

 

Again, one example will suffice. In paragraph 34 of the statement of facts, the Claimant averred thus:

 

“34.    The Claimant avers that in view of the unfair labour practices meted out on him by the Defendant, he instructed his solicitors to demand compensation and his contractual entitlements from the Defendant. The Claimant’s solicitors, via their letter dated June 20, 2022 wrote to the Defendant demanding compensation. The Claimant pleads and shall at the trial of the suit rely on his solicitors’ letter dated June 2022[sic], 2022. NOTICE is hereby given to the Defendant to produce the original of the letter.”

 

This was reproduced as paragraph 7[a] of the witness’ statement on oath. A proper pleading in the light of the Practice Direction should be: “The Claimant pleads and will at the trial rely on a photocopy of his Solicitors’ letter to the Defendant dated 20th June 2022, the original of which is with the Defendant. Notice is hereby given to the Defendant to produce the original at the trial.” The witness will thereafter state in his statement on oath thus: “Now shown to me and marked annexure 10 is a photocopy of my Solicitors’ letter to the Defendant dated 20th June 2022, the original of which is with the Defendant, and a notice to produce the original was given to the Defendant in paragraph 34 of the statement of facts.” That way, both the Defendant and the Court know upfront the manner of proof. Also, it saves the witness the burden of laying the foundation in the witness box, and gives effect to Order 40 Rule 1[4], National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, which provides that the oral examination of a witness during trial shall be limited to facts pleaded and the sworn deposition frontloaded.

 

17.      In the final analysis, Defendant’s notice of preliminary objection dated and filed on 24th June 2024 fails and it is hereby dismissed. I hereby direct that the Claimant shall amend the statement of facts and witness statement on oath to comply with the Practice Direction. The amended processes shall be filed and served within 14 days from today. I make no order as to cost.

 

Ruling is entered accordingly.

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

30/10/2024

 

Attendance: Parties absent

 

Appearance:

 

Abiola Ogunleye Esq. for the Claimant

C. A. Allagoa Esq. with Ayomide Ifeoluwa Onimole Esq. for Defendant