ALHAJI NWUGO CHIMERE NWUGO ESQ. -VS- THE NATIONAL ASSOCIATION OF NIGERIA NURSES AND MIDWIVES AND ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 22nd March 2018 SUIT NO. NICN/ABK/04/2017

BETWEEN

ALHAJI NWUGO CHIMERE NWUGO ESQ. … CLAIMANT/RESPONDENT

AND

THE NATIONAL ASSOCIATION OF NIGERIA

NURSES AND MIDWIVES

ALHAJI ABDURAFIU A. ADENIJI

PRESIDENT NATIONAL ASSOCIATION OF

NIGERIA NURSES AND MIDWIVES … DEFENDANTS/

COMRADE THOMAS SHETIMA APPLICANTS

GENERAL SECRETARY NATIONAL ASSOCIATION

OF NIGERIA NURSES AND MIDWIVES

REPRESENTATION:

Chinedu Edmeston Chinedu Nwogbaga Esq. for the Claimant with Sunday Ogbonna Obazi Esq.

Aondofa Samuel Akpenpuun Esq. for the Defendants

RULING/JUDGMENT

By a notice of preliminary objection dated and filed on 11th December 2017, the Defendants/Applicants [“the Applicants”] prayed this Court to dismiss/strike out the suit for being incompetent and therefore robbing the Court of jurisdiction to entertain it.

The grounds upon which the application was brought are:

That this present suit is an abuse of court process as the subject matter of the suit has been resolved and terms of settlement duly filed in the Appeal No. CA/E/250/2011 which was an appeal by the Defendants against the ruling of the Ebonyi State High Court in a similar suit, to wit; Suit No. HAB/4/2010 earlier instituted by the Claimant.

That the Claimant’s suit is initiated in a wrong judicial division of the court contrary to Order 2 Rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules 2017.

That the filing of this Suit before this Honourable Court is an act of forum shopping.

That the Claimant has no cause of action against any of the Defendants.

That this Honourable Court lacks the jurisdiction to entertain the Claimant’s present suit by virtue of the proceedings at the Court of Appeal, Enugu Judicial Division, to wit; Appeal No. CA/E/250/2011 as the Claimant is caught up by the doctrine of estoppel.

The 1st, 2nd and 3rd Defendants were not personally served with the originating processes of this suit thereby robbing this Honourable Court of the jurisdiction to entertain the suit.

The preliminary objection is supported with 20 paragraphs affidavit deposed to by Mr. Patrick Oghagbon, a Legal Practitioner in the Chambers of the Applicants’ Solicitors. Attached to the affidavit are 3 exhibits, exhibit A is a copy of the writ of summons and statement of claim in Ebonyi State High Court, exhibit B is a copy of the Notice of Appeal and exhibit C is a copy of the terms of settlement. The Applicants also filed a written address. In opposition to the preliminary objection, the Claimant/Respondent [“the Respondent”] filed a counter affidavit dated 8th January 2018. Attached to the counter affidavit are 3 exhibits, exhibit CAA 1 is copy of the letter of reinstatement, exhibit CAA 2 is a copy of the motion on notice and exhibit CAA 3 is copy of letter of voluntary retirement; and a written address dated 5th January 2018. The Applicants filed a further and better affidavit in support of preliminary objection dated 24th January 2018 and attached 2 exhibits, exhibits D and E, and reply on point of law dated 22nd January 2018 and filed on 24th January 2018. After receipt of the further and better affidavit in support of the preliminary objection, the Respondent filed a better and further counter affidavit dated 2nd February 2018.

The application came up for hearing on 5th February 2018. The Applicants’ Counsel, Mr. Akpenpuun, argued the preliminary objection. He relied on the affidavit in support and the better and further affidavit and the attached exhibits and adopted his written address and reply on point of law as his argument in support of the application and urged the Court to dismiss the case. In opposition, the Respondent’s Counsel, Mr. Nwogbaga, relied on the counter affidavit, better and further counter affidavit, attached exhibits and adopted his written address and urged the Court to dismiss the preliminary objection and assume jurisdiction to hear the case.

The Applicants raised one issue for determination in the written address filed by their Counsel, to wit: “Whether the process filed before this Honorable Court is competent to cloth this Honourable Court with the requisite jurisdiction to entertain the Claimant’s suit? Arguing the lone issue, learned Counsel to the Applicants submitted that the filing of this suit while an appeal is pending at the Court of Appeal in Appeal no. CA/E/250/11 against a decision of the Ebonyi State High Court involving the parties is an abuse of court process and renders the suit incurably bad and liable to be struck out and relied on the cases of Mabamije v. Otto [2016] All FWLR [pt. 828] 887 and Allanah v. Kpolokwu [2016] All FWLR [pt.830] 1213. It was also submitted that where a party’s suit amounts to abuse of court process the court has power to dismiss and/or strike it out. Learned Counsel further submitted that by virtue of the terms of settlement filed at the Court of Appeal the Claimant is estopped from bringing an action against the Defendants in respect of his retirement benefits and relied on Prince Oil Ltd v. GTB Plc [2016] All FWLR [pt.841] 1459 and Uwah v. Akpabio [2014] All FWLR [pt.738] 898-899. Relying on Ikeni v. Efamo [2001] FWLR [pt.55] 418, learned Counsel explained that for cause of action estoppel to arise, the cause of action in the latter proceeding must be identical with the cause of action in the earlier proceeding; and that cause of action estoppel requires identity not only of subject matter but also of parties and issues in the latter and earlier proceedings. It was also contended that estoppel is based on equity and good conscience. Continuing, learned Counsel argued that this suit was filed in breach of Order 2 rule 1[1] National Industrial Court [Civil Procedure] Rules 2017 in that all the Defendants are domiciled in Abuja and this renders the suit liable to be struck out and relied on Asika v. Atuanya [2014] All FWLR [pt.710] 1253. It was further contended that the act of filing this suit before this Court amounts to forum shopping. Learned Counsel argued that the originating processes served on one Joel Nnaji is bad and robs the Court of jurisdiction to hear the suit and relied on Ononye v. Chukwuma [2005] All FWLR [pt.287] 973 and Management Enterprises v. Otusanya [1987] 2 NWLR [pt.55] 179 and urged the Court to strike out the suit.

On his part, the Respondent raised 4 issues for determination, namely:

Whether the Defendants/Applicants’ preliminary objection challenging the competence of the Claimant/Respondent’s claim and the jurisdiction of the court to entertain same conforms with the statutory provisions and legal requirement of law to cloth the court with the jurisdiction to entertain same?

Whether the Claimant/Respondent’s claim before the Honourable Court is not incompetent and therefore not an abuse of court process which ought not to be struck out?

Whether the Claimant is estopped from seeking redress in court based on defective and inchoate terms of settlement pending in a different court?

Whether the surreptitious filing of the purported terms of settlement without the knowledge of the Claimant/Respondent is not breach of the fundamental right of the Claimant/Respondent to fair hearing?

Before arguing the issues the Respondent contended that he satisfied the conditions precedent to maintaining the action by service of pre-action notice. It was also argued that the Applicants were duly served with the originating processes in line with Order 7 rule 1[b][ii] National Industrial Court [Civil Procedure] Rules 2017. The Respondent argued further that a suit for specific performance or breach of contract can be commenced in the judicial division in which the contract was entered into or ought to be performed or in which the Defendant resides or carries on business and relied on George v. Savannah Bank of Nigeria [2010] All FWLR [pt.508] 312 and Resolution Trust Corporation v. FOB Investment & Property Ltd & Anor. [2001] 6 NWLR [pt.708] 246 at 262-263. It was submitted that the 1st Applicant carries on business in Abakaliki where the Applicants were served. Learned Counsel urged the Court to invoke Order 2 Rules 3 and 4[1] & [2] of the Ebonyi State High Court [Civil Procedure] Rules 2008 pursuant to Order 23 of National Industrial Court [Civil Procedure] Rules 2017.

On issue one, the Respondent submitted that the preliminary objection is by way of demurrer which has been abolished and so incompetent and relied on Moyosore v. Gov. of Kwara State [2012] 5 NWLR 242 and JFS Invest Ltd v. Brawal Line Ltd [2011] 17 WRN 1 at 7-8. On issue two, learned Counsel contended that the Suit is neither incompetent nor abuse of court process. He explained that this suit is different from Suit no. HAB/04/2010 involving different parties and claims and in respect of which the Applicants went on appeal; and submitted that where suits are different in subject matter, issues and parties there cannot be an abuse of court process and relied on Okafor & Ors. v. AG Anambra State [1991] 7 SC [pt.111] 138 and Saraki v. Kotoye [1992] 11-12 SC. It was also submitted that different suits can emanate from the same subject matter and such cannot constitute an abuse of court process and relied on Com Inc v. Cobham [2006] 15 NWLR [pt.1002] 283. On issue three learned Counsel argued that the terms of settlement is defective having not been signed by counsel to the parties before it was filed by the Applicants and was neither served on Respondent nor adopted by the parties. It was also contended that assuming the terms of settlement is a final copy the Court cannot act on it because parties have not adopted it. Learned Counsel argued that failure to serve a copy of the terms of settlement on the Respondent was a fundamental omission and nullifies the process and relied on Obrunyolemi v. Akhagbe [2010] 15 WRN 23 at 26-27. On issue 4, it was submitted that the surreptitious filing of the purported terms of settlement by the Applicants without service on the Respondent constituted a breach of his constitutional right to fair hearing and renders any proceeding null and void and relied on INEC v. DPP & Ors. [2016] 2 CAR 378 and urged the Court to dismiss the preliminary objection. By way of reply on point of law, the Applicants contended that by Order 7 rule 1[1] National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, the 1st Applicant should be served at its main office at 13 Makurdi Street, Area 10, Garki, Abuja and that the 2nd and 3rd Applicants being natural persons ought to have been served personally. Learned Counsel explained that a demurrer is different from a challenge on jurisdiction which can be raised before the statement of defence is filed and relied on R.I.N. v. Gold [2007] 30 NSCQR at page 886 [sic], University of Calabar v. Socket Works Ltd [2014] All FWLR [pt.743] 968 and Davies v. Mendes [2007] All FWLR [pt.348] ratio 4. On what constitutes an abuse of court process, learned Counsel referred to the cases of Ogboru v. Uduaghan [2014] All FWLR [pt.719] 1041 at 1060, VAB Petroleum Inc v. Momah [2014] All FWLR [pt.712] 1627 at 1656 and AG Lagos State v. AG Federation [2014] All FWLR [pt.740] 1296 at 1325-1326 and urged the Court to decline jurisdiction.

I have carefully listened to the submissions of learned Counsel for the parties and considered the affidavits in support and against the preliminary objection together with the attached exhibits and cases cited by Counsel to the parties. From the totality of the arguments canvassed by learned Counsel for the parties, it is my firm view that the issue for determination raised by the Applicants aptly captures the essence of this application. In this ruling, therefore, I will adopt that lone issue, to wit: Whether the process filed before this Honorable Court is competent to cloth this Honourable Court with the requisite jurisdiction to entertain the Claimant’s suit? The Applicants’ challenge of this suit is two-prong, one is venue and service of originating process and the second is multiplicity of actions. We will deal with it in that order.

SERVICE OF THE ORIGINATING PROCESS

The parties are agreed that the originating processes were served on one Mr. Joel Nnaji at the 1st Applicant’s Ebonyi State Office at Plot 4 Unity Layout, Edda Echara, Abakaliki. Learned Counsel for the Applicants submitted that the suit ought to have been commenced in Abuja being the main office of the 1st Applicant and that service should have been effected there. He argued that the 2nd and 3rd Applicants being natural persons ought to have been served personally. First, on the forum let me start by saying that the whole of the Federal Republic of Nigeria is the jurisdiction of the National Industrial Court. That is to say, that the National Industrial Court has one jurisdiction and the Judicial Divisions are for administrative convenience. Order 1 rule 10[2] National Industrial Court [Civil Procedure] Rules 2017 defines ‘Judicial Division’ as the location at which the Court carries out its business in any part of the Federation. All Judicial Divisions of the Court shall be one for the purpose of instituting, commencing and proceeding on any matter within the jurisdiction of the Court. So, the Judicial Division of this Court is one and processes can be filed in any of the administrative offices [Judicial Divisions]. Section 21[1] National Industrial Court Act, 2006 provides:

“The Court shall have and exercise jurisdiction throughout the Federation, and for that purpose the whole area of the Federation shall be divided by the President of the Court into such number of Judicial Divisions, as the President may, from time to time, by instrument published in the Federal Gazette decide, and may, designate any such Judicial Division or part thereof by such name as he thinks fit.”

Equally Order 2 rule 1[1] of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 [“the Rules”] provides:

“Subject to the provisions of the Act on transfer of suits, an originating process in respect of a matter in which the Court has jurisdiction shall be filed in any Registry of the Court nearest to where the defendant or respondent resides or has presence or in which the defendant or respondent carries on business.

Provided that where economic, security, environmental or other exigencies warrant, an originating process may be filed in the Court’s Registry in a Judicial Division other than that closest to the place of residence or business of the defendant[s] or respondent[s].”

Order 2 rule 4[1] of the Rules provides that where there are several defendants or respondents who reside or carry on business in different Judicial Divisions, the suit may be commenced in any one of those Judicial Divisions subject to any order or direction of the Court as to the most convenient arrangement for trial of the suit.

Then Order 2 rule 5 of the Rules provides that where any suit is commenced in any wrong Judicial Division, it may be tried in that Division unless the President of the Court otherwise directs.

Evidently, by Order 2 rule 1[1] of the Rules an action may be commenced in any of the three Judicial Divisions, namely:

[i] Where the Defendant resides;

[ii] Where the Defendant has presence;

[iii] Where the Defendant carries on business

Where there are several Defendants as in this case, the action can be commenced in any of the Judicial Divisions above. However, a suit commenced in a Judicial Division other than that provided above is not vitiated by that very fact. Order 2 rule 5 of the Rules provides that the suit may nevertheless be tried in that Judicial Division unless the President of the Court otherwise directs. From affidavit evidence, the 1st Defendant has a presence in Abakaliki. I therefore find and hold that the suit is properly commenced in this Judicial Division. The invitation by the Respondent to invoke and adopt Order 2 of the Ebonyi State High [Civil Procedure] Rules 2008 is misconceived as adequate provision has been made in the Rules for commencement of action. At any rate by Orders 23 rule 1 and 17 rule 1[1] of the Rules, such invitation is by an application properly filed and served on the opposing party; and not made in a written address.

This leads me to the second sub-issue which is service of the originating process on the Defendants. The Applicants contend that the originating process served on Mr. Joel Nnaji on behalf of the Applicants is in breach of Order 7 and decided cases and therefore robs the Court of the capacity to entertain the suit. First, I wish to observe that learned Counsel for the Applicants did not quote Order 7 rule 1 [1][h][ii] of the Rules correctly. Sub-paragraph [ii] provides:

“If the person is a trade union or employers’ organization, by serving a copy of the document on a responsible person, or officer or employee of the union or employers’ organization who at the time of such service is apparently in charge of the main office of the trade union or association or employers’ organization or the union’s or employers’ organization’s office within the Judicial Division in which the dispute first arose, at that office of the union or employers’ organization or, if there is no person willing to accept service, by affixing a copy of the document or process to the main door of that office.”

It is therefore clear that the Rule did not anticipate only service at the Head office of the 1st Applicant as urged on the Court by the Applicants. It says “the main office of the trade union or association or employers’ organization or the union’s or employers’ organization’s office within the Judicial Division in which the dispute first arose”. It is the main office within the judicial Division in which the dispute first arose, which in this case is Plot 4 Unity Layout, Edda Echara, Abakaliki and Mr. Joel Nnaji is apparently in charge of that office. I therefore find and hold that the service of the originating process on the 1st Applicant is proper and good service. However, this cannot be said of the service of the originating process meant for the 2nd and 3rd Applicants on Mr. Joel Nnaji. It is in evidence that the 2nd and 3rd Applicants live and work in Abuja. Plot 4 Unity Layout, Edda Echara, Abakaliki cannot by any stretch of imagination be described as their place of residence or business or place of employment. Although the 2nd and 3rd Applicants are principal officers of the 1st Applicant, their place of employment in this sense is where they resume daily to carry out the duties of their office which is 13 Makurdi Street, Area 10, Garki, Abuja. In the absence of an order for substituted service, the service of the originating process meant for the 2nd and 3rd Applicants on Mr. Joel Nnaji is bad and hereby set aside. I hasten to add that this still does not rob the Court of jurisdiction to hear the matter as there is one valid party before the Court. Learned Counsel’s objection on this ground is therefore overruled.

The next sub-issue is multiplicity of actions resulting in abuse of court process. Learned Counsel for the Applicants argued vehemently that this suit constitutes an abuse of court process. The basis of this argument can be found on page 8 of his written address in support of the preliminary objection. He explained that “we start our argument by drawing this Honourable court’s attention to the existence of a suit that was filed before the High Court of Ebonyi State on the 1st of March 2010, to wit; Suit No. HAB/4/2010 and also of an appeal pending at the Court of Appeal [Enugu Judicial Division], to wit; CA/E/250/2011.” Nothing can be farther from the truth. Paragraph 6 of the further and better affidavit in support of preliminary objection and Exhibit D attached to the affidavit show that Suit no. HAB/4/2010 was struck out on 1st March 2010 and there is no evidence that it has been relisted. It is therefore inappropriate for Counsel to submit that the suit is still in existence. Literally, when a matter is struck out it is removed from the cause list and ceases to exist. Suit no. HAB/4/2010 has ceased to exist and can only resurrect by a fresh action. I so hold. Learned Counsel also argued that there is a pending appeal at the Court of Appeal Enugu Judicial Division. The notice of appeal is exhibit B. A cursory look at the notice of appeal reveals that it is an interlocutory appeal against the ruling of Ebonyi State High Court striking out the suit and not an appeal on the substantive matter which was never heard or decided by the Court. Although, the term abuse of court process is not capable of any precise judicial definition, the prevailing judicial stance is that for a matter to constitute an abuse of court process there must be an intention to proceed with the multiplicity of suits to the annoyance or irritation of the adversary. The abuse lies in the inconvenience and inequalities involved in the aims and purpose of the action. To amount to an abuse of process, the proceeding or step in the proceeding complained of, will in any event, be lacking in bona fides. It has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process for a purpose and to obtain a result not lawfully warranted or properly attainable thereby. See the cases of Messrs NV Scheep & Anor. v. The MV “A. Araz” & Anor. [2000] 12 SC [vol.1] 164 at 204-207, Akpan v. Julius Berger Plc [2002] 52 WRN 50 at 73, Barnabas Nwadiaro & Ors. v. The President and Members of Customary Court Ossomala [2016] LPELR-40925[CA] at pages 13-15 and African Continental Bank Plc v. Damian Ikechukwu Nwaigwe & Ors. [2011] LPELR-208[SC] at pages 12-13.

Essentially, there are three main ingredients that must be present for an abuse of court process to occur. These are:

the actions must be between the same parties;
the actions must be on the same subject matter; and
it must be on the same issues.

See SCOA Nigeria Plc & Anor. v. The Registered Trustees of Methodist Church of Nigeria & Anor. [2016] LPELR-40192[CA] at page 15. There is no doubt that the appeal is between the same parties, but the subject matter and issues raised in the appeal are different from the subject matter in this suit even though arising from the Respondent’s employment. An act can give rise to different suits and a subject matter may very well give rise to different rights of action. See the case of Christian Outreach Ministries Inc. & 2 Ors. v. Mrs. Ekanem Oku Cobham & Anor. [2005] LPELR-11406[CA] at pages 24-25. Consequently, the fact of a pending appeal between the parties at the Court of Appeal does not ipso facto make this suit an abuse of court process and I so hold.

Having said this, I will now look at exhibits C and E attached to the Applicants’ affidavits. It is captioned “Terms of Settlement” and ostensibly made between the Respondent and the 1st Applicant and 4 others. The Respondent did not deny his signature on the document or allege that it was fraudulently procured, but tried to explain its effect [see paragraphs 31 to 50 of his counter affidavit]. In his counter affidavit dated 8th January 2018, the Respondent stated as follows:

“31. That the purported terms of settlement signed by the General Secretary of the 1st Defendants/Applicants [sic] and me was a commitment that amicable settlement has been reached pending the final settlement agreement to be written and signed by the parties and their respective counsel as clearly stated in the concluding part of the said draft copy of the terms of settlement: “in witness whereof the parties hereto and their respective counsel, have set their hands that date and year below written”.

“32. That the purported term of settlement was prepared by the counsel to the 1st defendant/applicant who was in a hurry to attend to other matters and left for me and the General Secretary of the 1st defendant/applicant to sign.”

The Applicants in their further and better affidavit stated thus:

“13. That on the 13th February, 2015 the 1st Defendant and the Claimant together with the 1st Defendant’s Counsel signed the said copies of the terms of settlement and handed it over to the Claimant to take same to his counsel to sign his part but after much waiting the Claimant came back and said his counsel was in Abuja but refuse [sic] to sign. The said copy the terms of settlement is attached here as exhibit E.”

“16. That consequent upon the above the 1st Defendant Counsel was requested to reproduce another set of the term of settlement for only the parties to sign irrespective of their counsel which they did and handed over to him for filing. The 1st Defendant in the spirit of good faith even before entering of the terms as consent judgment performed all it [sic] obligation to Claimant only for him out of bad faith to turn around and file this present action.”

The Respondent’s response to paragraph 16 above is contained in paragraph 28 of his further and better counter affidavit in opposition to preliminary objection. It states:

“28. That paragraphs 14, 15 and 16 are false as my counsel was never present at the meeting to have refuse [sic] signing the purported terms of settlement and I was never urged to resolve any none existence [sic] issue between me and my counsel.”

Clearly, paragraph 16 above was not traversed. It is my firm view that paragraph 28 above is a general traverse and did not controvert the specific allegation in paragraph 16 which includes the fact of performance by the 1st Applicant of its obligation to the Respondent under the terms of settlement. It is trite that a general traverse is not sufficient in law; and that general traverse is no traverse at all. See Daniela Aghogho & Anor. v. Bernard Oboatarhieyeren Okumagba [2014] LPELR-22855[CA] at pages 10-11. In Intercontinental Bank Plc v. Sunshine Oil & Chemical Development Company [2014] LPELR-22928[CA] at page 9, Dongban-Mensem, JCA, held: “The counter-affidavit, especially paragraph 4 does not constitute sufficient traverse of the depositions of the Applicant as none of the facts have been effectively controverted. A mere declaration that facts deposed to in an affidavit are not true is not sufficient unless the deponent is the same person who made the earlier deposition.” The implication, therefore, is that paragraph 16 of the Applicants’ further and better affidavit in support of the preliminary objection is uncontroverted and I so hold. If I am correct, the question then is can the Respondent, after signing exhibits C and E and receiving the performance by the 1st Applicant of its obligation pursuant to its terms, and even part-performing his own obligation by his voluntary retirement [exhibit CAA3], now turn around to challenge the computation of his retirement benefits in a fresh action? I do not think so. It is settled law that agreements of parties which are not illegal and do not originate from fraud are to be observed and respected by parties. It has been held that the law frowns at approbation and reprobation, which if given legal backing and force will make agreements uncertain and a sham. Therefore, no court will allow itself to be used as an instrument of bad faith and breach of contractual obligations voluntarily entered into by parties before it. See the case of Michael Awieh & 3Ors. v. Chief Johnson Fada Owofio [2012] LPELR-9472[CA] at page 27.

Perhaps I should state here that, contrary to the argument of the Respondent, adoption of the terms of settlement in Court is not a condition precedent to its validity. The terms become valid and binding upon execution by relevant parties. See the case of Union Homes Savings & Loans Limited v. CPL Industries Limited [2009] LPELR-8154[CA] at pages 9-10. In this case, exhibit C was signed by the General Secretary and the Respondent. The General Secretary from available evidence is the Chief Operating Officer of the 1st Applicant and therefore has power to bind the 1st Applicant. The terms of settlement became effective upon execution by the 1st Applicant and the Respondent.

It is the Respondent’s case that exhibit C was “a commitment that amicable settlement has been reached pending the final settlement agreement to be written and signed by the parties and their respective counsel as clearly stated in the concluding part of the said draft copy of the terms of settlement: “in witness whereof the parties hereto and their respective counsel, have set their hands that date and year below written”. The question is, is Counsel’s signature to the terms of settlement necessary for its validity? I do not think so. I have searched through the cases but did not find any authority that says a Counsel must sign the terms of settlement. It is my respectful view that the parties’ signatures suffice as their Counsel usually sign the terms of settlement as witnesses. The role of a witness is to confirm that he saw the parties do what they claim to have done. It is my firm view, therefore, and I so hold, that the absence of the witness’ [Counsel’s] signature will not and cannot vitiate the agreement.

Flowing from the above, I find and hold that the Respondent is estopped from re-litigating the issue of his retirement benefits in this Court. If there are terms of the terms of settlement he no longer agrees with, this can only be taken up at the Court of Appeal which has power to enter the terms as consent judgment or set it aside. In the circumstance, I hold that this suit constitutes an abuse of court process because it seeks to re-open the claim for the Respondent’s retirement benefits. Consequently, the Applicants’ notice of preliminary objection dated and filed on 11th December 2017 succeeds and it is granted. This suit is an abuse of court process and it is hereby struck out. There shall be no order as to costs.