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CHIEF KALAMA ABRAHAM & 49 ORS VS BGP/CNPC INTERNATIONAL NIG.

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISON

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

26th November, 2018

Suit No: NICN/YEN/112/2016

BETWEEN:

  1. CHIEF KALAMA ABRAHAM
  2. MR. FELIX NWOYORO
  3. MR. OWATE KALAMA
  4. FAKIDOUMA WILBERFORCE
  5. PANEBI IMOFO
  6. GIFT ELEKELE
  7. AUGUSTINE ELEKELE
  8. TARI ERIGI
  9. WENIBO T. LONG
  10. SAMPSON BUNAKEMEFA
  11. MY-OWN WILSON BUNAKEMEFA
  12. EZI PEACEFUL
  13. IMOMOEMI WENIBO
  14. AVO IMOMEMI
  15. BENSON GOODDAY
  16. OWAWE KALAMA
  17. SARIA MIEBI
  18. KOFI OKAH
  19. OSOKUNA JEREMIAH
  20. AKORI RAPHAEL
  21. AKADUMEME KELVIN
  22. IBE RICHARD
  23. ATAMAH GOODLUCK
  24. MATEIKUMO SIMEON
  25. NWALIA FELIX
  26. NYEKIF AMO FREEBORN
  27. INOGULA EBIWARI
  28. LEVI EBIDOUWEI
  29. JACKSON SEIBA
  30. IBATOU GLORY
  31. THEOPHILUS ALAWEI
  32. OLULU AZIBAOLONIYARI
  33. MARRY RIGHTEOUSNESS KOLGA
  34. KEMEKEKURO ODOIBO
  35. THOMAS BURVARIKUMO
  36. AMOS WISDOM
  37. BONIFACE IGUDU
  38. GBAKA EVERLASTING
  39. CYPRAIN DAMION
  40. INNOCENT PHILIP OSUOTO
  41. WISDOM DOKUMO
  42. AMOH FEDINARD
  43. ZAGUNU MOSES
  44. PRINCE IWEAIS
  45. RUEBEN ITUKUNU
  46. JOSHUA OGIDI
  47. PRAISEGOD ZAGUNU
  48. BENNETH INNUMA
  49. CHIEF ALBERT ADEBO
  50. GODGIFT OBONAH

CLAIMANTS/RESPONDENTS

AND

  1. BGP/CNPC INTERNATIONAL NIG. LTD

1ST SET OF DEFENDANT/APPLICANT

  1. THE SHELL PETROLEUM DEVELOPMENT

2ND SET OF DEFENDANT/APPLICANT

COMPANY OF NIG. LTD.

APPEARANCE

 

A.B Ebiki Esq appeared with P.B Tamuno Esq for the Claimants/Respondents.

Mr. Ojo Abiogun Esq for the 1st Defendant/Applicant.

Mr. J.K Kanoba Esq for the 2nd set of Defendant/Applicant.

 

RULING

 

SUMMARY OF FACTS AND LEGAL ARGUMENT

The Claimant instituted this action vide a complaint dated 16th June, 2016 and filed on the same date. The Claimants claims against the defendants are as follows:

  1. a)A DECLARATION that the 2nd Defendant entered into a Global Memorandum of Understanding (GMOU) with members of Okordia/Zarama Cluster communities on the 11th day of May, 2011 which specified the monies to be paid as monthly salary to unskilled, semi skilled and skilled workers under the 2nd Defendant’s seismic operation/activities.

  1. b)A DECLARATION that the Claimants are employees of the 1st

  1. c)AN ORDER directing the 2nd Defendant to call the 1st Defendant to comply with the Global Memorandum of Understanding (GMOU) entered with members of Okordia/Zarama cluster communities on the 11th day of May, 2011.

  1. d)AN ORDER directing the 1st Defendant to pay the unskilled workers the sum of Sixty Thousand Naira (N60,000) only monthly, the semi-skilled workers the sum of Ninety Thousand Naira (N90,000.00) only monthly and pay the skilled workers the sum of One Hundred and Twenty Thousand Naira (N120,000.00) only in line with the Defendant normal rates as provided for in pages 2 and 9 of the Global Memorandum of Understanding (GMOU) entered with members of Okordia/Zarama Cluster Communities on the 11th day of May, 2011.

  1. e)AN ORDER directing the 1st Defendant to pay the Claimants and other workers all their balance of unpaid salary forthwith starting from the day of their employment where the unskilled workers are to be paid the sum of One Hundred and Twenty Thousand Naira (N120,000.00) only each, the semi-skilled are to be paid the sum of One Hundred and Thirty Five Thousand (N135,000.00) only each while the skilled workers are to be paid the sum of One Hundred and Seventy Five Thousand Naira (N175,000.00) only each monthly.

  1. f)AN ORDER directing the 1st Defendant to pay the Claimants and other workers all their pay-off salary which is agreed to be paid after every three months.

 

  1. g)AN ORDER directing the Defendants not to further withhold the Claimants salary and other benefits due the claimants and other workers till the end of the Defendants seismic operations.

  1. h) AN ORDER directing the Defendants to pay the Claimants the sum of One Hundred and Twenty Five Thousand Naira (N125, 000. 00) only as special damages.

  1. i)AN ORDER directing the Defendants to pay the Claimants the sum of Four Million Five Hundred Naira (N4, 000, 500.00) only as general and exemplary damages.

The Claimants alongside filed Statement of Claim, List of Witnesses to be called at the trial, List of Documents to be relied upon at the trial and Witness Deposition on Oath. The Claimants also filed an amended Complaint and an amended Statement of Facts.

 

THE CASE OF THE DEFENDANT

 

The 1st Defendant filed her Memorandum of Appearance dated 26th August, 2016 and filed on the 30th August, 2016. The 1st Defendant also filed Statement of Defence, List of Witness, Witness Deposition on Oath and List of Documents to be relied upon in the cause of trial, after the Claimant had opened his case and matter adjourned for cross examination of CW1, the1st Defendant Counsel filed a Motion on Notice challenging the jurisdiction of the court.

THE 1ST DEFENDANT MOTION ON NOTICE

The 1st Defendant filed a Motion on Notice dated the 17th August, 2018 and filed on the same date. The application is brought pursuant to Order 3 Rules 10 (c) (i) 21, Order 4 Rule 4 (3), Order 6 Rule 1 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The 1st Defendant/Applicant is praying for the following:

  1. a)AN ORDER of this Honourable Court striking out the complaint, the Statement of Fact, the Amended Complaint and the Amended Statement of Facts filed in this suit as they are all fundamentally defective and incompetent; consequently this Honourable Court lacks jurisdiction to hear this suit.

  1. b)AND FOR SUCH FURTHER ORDERS(s) as the Honourable Court may deem fit to make in the circumstances.

In support of this application, the applicant filed an eight paragraphs affidavit in support of this application, four annexures (Exhibit A – D) and a written address. In the written address the applicant formulated three issues for determination as follows:

  1. a)Whether the Originating Processes in this suit were properly signed by an identifiable Legal Practitioner as required by the rules of court.

  1. b)Whether this objection by the 1st Defendant is one which may be classified as a mere technicality.

  1. c)Whether it is not too late in the day to take this objection.

On the first issue of whether the Originating Processes in this suit were properly signed by an identifiable Legal Practitioner required by the Rules of court, Learned Counsel submit that the position of the law is that a signature or a mark put on a process must be identifiable with its signatory. Refer to Order 3 Rule 10 (c) (i) and Order 4 Rule 4 (3) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. Furthermore that the simple question to be answered is whether a court process which contains a list of many lawyers could be said to have been properly signed without an indication as to who among the listed lawyers owns the signature? He argued that a process must speak for itself without anybody who is reading it having to ask the question: whose signature is this? That would amount to searching for evidence to connect the signatory to the name, and that the need to look for evidence to establish the identity of the signatory of a process has been rejected by the Supreme Court. Refers C.A Banjo & Ors Vs. ETERNAL SACRED ORDER OF CHERUBIM & SERAPHIM 1975 3 SC 37 at 44, Okafor Vs Nweke (2007) ALL FWLR (PT. 368) 1016 at 1025. It is the contention of the applicant that looking at the Originating Processes before this court (Exhibits A & B) carry two (2) names: Ayibatekena Bruce Ebiki Esq and Perepuighe Biewari Esq. The question is who between these two lawyers is the owner of the signature that was written on top the 2 names? The applicant stated that the law as it stands today is that where a legal process carries more than one name with a signature on top of the names, there must be a link identifying the owner of the signature to the name. Cited Williams Vs Adold Istamm (2017) 1 S.C.N.J 250. The applicant further argued that if the signatory had simply written his name above the printed names it would have been easy to identify who between  Ayibatekena Bruce Ebiki Esq and Perepuighe Biewari Esq. signed the Originating Processes as was the case of Williams (supra). Rather, as could be seen in Exhibits A and B, the signatory to the processes put a signature on them. Cited SBL CONSORTIUM VS NNPC (2011) 4 SCNJ 211 where the Supreme Court re-affirmed its position in the Williams case when it held at page 223 as follows:

        “In the instant case, it would have been sufficient if Mr. Adewale Adesokan      has simply written or stamped his name on top of ADEWALE ADESOKAN         & CO. as His Lordship A. M Muktar, JSC said in his concurring judgment   “the emphasis here is on the name together with the signature” to be   identifiable.

 It is also the contention of the applicant that the acceptable format of a signature of a lawyer on a court process is one signed by an identifiable Legal Practitioner. Refers to the authority of First Bank of Nigeria Plc Vs Maiwada (2013) ALL FWLR (Pt. 661) 1433 where the Supreme Court had to invite J.B Daudu (SAN), Chief Wole Olanipekun (SAN), Dr Onyechi Ikpeazu (SAN) and some other senior lawyers as amicus curiae who made written and oral representations to the Supreme Court on the sole issue which was couched in the following words “whether considering the state of the law as well as legal development and practice the Supreme Court will not overrule, depart from or vary its recent decisions, including but not limited to OKAFOR V NWEKE  (2007) ALL FWLR (Pt. 368) 1016, OKETADE Vs. ADEWUNMI (2010) ALL FWLR (PT. 526) 511 where it was held that a court process not personally signed by an identifiable Legal Practitioner is incompetent”. And at the end the Supreme Court maintained its earlier position that the failure to properly sign an Originating Process by identifying the owner of a signature as that of a Legal Practitioner makes the process incompetent and it affects the jurisdiction of the court.

The applicant contended that the Originating Processes and indeed, all processes filed this far by the Claimants were not signed by any identifiable lawyer listed on the process which means the processes could have been signed by someone else not listed on the face of the processes. And urge the Honourable court to strike out this suit for being incompetent and resolve the first issue in favour of the applicant.

On the second issue whether this objection by the 1st Defendant is one which may be classified as a mere technicality, it is the submission of the Learned Counsel that an objection to an irregularity on signed process is not a matter of mere technicality but one goes to the competence of the process in question and ultimately the jurisdiction of the court to hear and determine the suit. Refers to First Bank of Nigeria Plc Vs Maiwada (supra) at page 1440 and urge the Honourable Court to answer this issue in the negative.

On the third issue of whether it is not too late in the day to take this objection, it is the submission of the Learned Counsel that the law as it stands today, is that it is never too late. Refers SBL CONSORTIUM v NNPC (2011) 4 SCNJ 211 pages 223 – 224, Alawire V Ogunsayo (2012) 12 SCNJ 942.

It is the contention of the applicant that the direct consequence of any defect in an Originating Process is one of striking out the suit notwithstanding any evidence that may have been led and notwithstanding the fact that the defect was raised very late and only on appeal. The law is that you cannot put something on nothing and expect it to stand. Cited MACFOY V U.A.C (1962) 5 SCNLR, S.B PLC V PENBURY (NIG.) LTD (2016) ALL FWLR (PT. 833) 1882. And urge the Honourable court to also answer this issue in the negative.

Finally, the Learned Counsel urged this court to resolve all the issues raised in favour of the 1st Defendant and strike out this matter for lack of jurisdiction.

CLAIMANT’S REPLY

 

The Claimants/Respondents filed a Counter Affidavit and reply to 1st Defendant/Applicant’s Motion on Notice dated the 24th August, 2018 and filed on the same date. Learned Counsel to the Claimants/Respondents formulated two issues for the determination of this Honourable court as follows:

  1. a)Whether or not court processes are filed by a lawyer with his NBA stamp affixed on it and/or with proof of payment for his NBA stamp.

  1. b)Whether or not this Honourable court is empowered by section 101 (1) of the Evidence Act, 2011 to compare signature of a party before the court.

On the first issue of whether or not court processes are filed by a lawyer with his NBA stamp affixed on it and/or with proof of payment for his NBA stamp, Learned counsel submit that it is trite and quite an elementary principle of law that court processes and other documents prepared and signed by a lawyer is to be affixed with his NBA approved stamp if same has been issued to him or where NBA approved stamp is yet to be issued then with a proof that such a lawyer has paid for the NBA approved stamp before a court process is filed in court. It is also the submission of counsel that a court process which is affixed with NBA approved stamp of a specified lawyer is not to be signed by any other lawyer but only the lawyer who owns the NBA approved stamp. Refers to Rules 10 (1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007. It is the contention of the respondent that the only NBA approved stamp affixed and the signature on the complaint is that of Mr. Ayibatekena Bruce Ebiki who has signed all the processes in this suit. And referred the Honourable court to the NBA approved stamp affixed to the complaint and the signatures on all the processes filed by the Claimants/Respondents inclusive of this written address. Therefore urge this court to so hold and dismiss the 1st Defendant/Applicant’s Notice of Preliminary Objection with cost as stated on the Counter Affidavit.

On the second issue of whether or not this Honourable court is empowered by section 101 (1) of the Evidence Act, 2011 to compare signature of a party before the court. Learned counsel submit that it is trite law that this Honourable court is empowered under section 101(i) of the Evidence Act, 2011 to compare the signature of Ayibatekena Bruce Ebiki Esq as it appeared on the exhibits attached to the 1st Defendant affidavit and every other processes filed by the Claimant/Respondent which are in the court’s file to ascertain that the signature on the complaint is that of Ayibatekena Bruce Ebiki Esq. Cited section 101 (i) of the Evidence Act (supra) and the case of Brown v State (2012) 3 NWLR (pt. 1287) p. 207. And urge the court to compare the signatures.

It is also the contention of the respondent that the Notice of Preliminary Objection filed by the 1st Defendant/Applicant is based on technicalities which are frowned at by courts in contemporary legal practice. He is also of the view that the questions to be answered are:

  1. Is the NBA approved stamp on the complaint that of Mr. Ayibatekena Bruce Ebiki and

  1. Are there other processes filed by the Claimants/Respondents?

The Learned Counsel answered the first question in the affirmative and the second in the negative and urge the court to discountenance the application of the 1st defendant/applicant for not showing cogent and compelling reasons. It is also the contention of the respondent that the applicant’s preliminary objection is not founded in law but brought mala fide to waste the time of the court, as our civil procedure in contemporary law practice frowns at such objections and gives no room for technicalities as the lack merit by not touching on the merit of the case: refers to the case of Falobi v Falobi (1976) N.S.C.C 576 at 581 paragraphs 30 – 35.

 

Finally, learned counsel submitted that this Honourable court refuse this application as it is purely technical in nature with the cost of Two Hundred Thousand Naira (N200,000.00) only against the applicant in favour of the Claimants/Respondents.

1ST DEFENDANT REPLY ON POINTS OF LAW TO THE WRITTEN ADDRESS OF THE CLAIMANTS DATED 24/8/2018

 

In reply to the written address of the Claimant learned counsel submitted that an affixing of the approved NBA stamp of Ayibatekena Bruce Ebiki Esq the mode of linking a signature to a name where more than one name appears on a document is by making a tick beside the name of the signatory. Refers to the case of Tanimu vs Rabiu (2017) ALL FWLR (Pt. 900) 391 pg 412.

That a consideration of section 101 (1) of the evidence act does not have a place in this case. Section 101 (i) of the Evidence Act can only be applied to disputed signatures which may be compared with other signatures of the signatory which has been admitted by him or proved to be his own. It is also submission of counsel that he concede that the signature in all processes is regular and belong to the same signatory, his contention is that the owner of this signature is not made known on the face of the processes.

On whether the objection being merely a matter of technicality, it is the submission of the counsel that the following cases have laid to rest the argument that the objection is not purely a matter of technicality. Refers to Williams v Adold Istamm (2017)1 SCNJ 250, SBL Consortium v NNPC (2011) 4 SCNJ 211 and First Bank of Nigeria Plc v Maiwada (2013) All FWLR (Pt. 661) 1433. The 2nd Defendant/Respondent did not file any process.

COURT’S DECISION

 

I have looked at all the processes filed before this court and I have painstakingly read through the arguments of Learned Counsel for the 1st Defendant/Applicant on the Preliminary Objection, and I have equally analysed the response filed by the Claimants/Respondents. The grounds raised by counsel to the 1st Defendant/Applicant touches on the very foundation of the court’s powers to hear and determine the suit.

In other to effectively and effectually determine this application, I formulated a lone issue for determination as follows:

        Whether the suit filed by the Claimants is competent and the processes          are properly filed.

The law is settled on the relevance of jurisdiction and the need to ascertain the presence of it when challenged, before delving into the substance of the suit. In other words, the court is called upon to drop its armour, retreat and satisfy itself that it is sufficiently clothed with the powers to determine the suit. This court is truly not an errand knight looking for jurisdiction where no one has activated it.

Furthermore, a court is competent when the court is properly constituted as regards to numbers and qualification of the members of the bench, the subject matter of the case is within its jurisdiction, and the case comes before the court is initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. And all the requirements must co-exist conjuctively before jurisdiction can be exercised by the court. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587 SC; SKEN CONSULT VS. OKEY (1981) 1 SC PG 6; LUFTHANSA AIRLINES VS ODIESE (2006) 7 NWLR (PT. 978) 39 C.A.

 

Having said all these, the gravement of this application is for an order of this court striking out the Complaint, the Statement of Fact, the amended Complaint and the amended Statement of Facts filed in this suit as they are fundamentally defective and incompetent, and consequently this court lacks the jurisdiction to hear this suit. That the said processes in this suit were not signed by an identifiable Legal Practitioner as required by the rules of this court.

I have painstakingly read and analysed the provisions of Order 3 Rules 10 (c) (i), 21, Order 4 Rule 4 (3), Order 6 Rule 1 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, and I have also analysed the authorities cited by the Learned Counsel to the 1st Defendant/Applicant which includes but not limited to OKAFOR VS NWEKE (Supra), WILLIAMS VS ADOLD ISTAMM (Supra), SBL CONSORTIUM VS NNPC (SUPRA) FIRST BANK PLC VS MAIWADA (Supra) where the courts held that a court process not personally signed by an identifiable Legal Practitioner is incompetent and it affects the jurisdiction of the court. It is instructive to state here that in FIRST BANK VS MAIWADA (SUPRA) what the Supreme Court was called upon to determine amongst other things is whether a Notice of Appeal signed by a law firm is competent. And what is before this court is whether a process signed by an unidentifiable Legal Practitioner is competent. In the matter before me what the applicant is contending is the signature appended on top of the names listed on the processes, and that one can not identified as to who actually signed the processes amongs the listed Legal Practitioners. In other words, the person who signed the processes failed to tick his name signifying that he was actually the person who signed the processes.

I have carefully analysed the processes, that is the amended Complaint, Statement of Facts and other accompanying processes, and one can see that there are three names of Legal Practitioners which includes Ayibatekena Bruce Ebiki, Perepuighe Biewari and Pere-Ebi Bernard Tamuno. Although the processes were signed, but there is no any indication as to who amongs the three mentioned names signed the processes. But looking at the receipt exhibited by the Counsel to the Claimants accompanying the said processes one can see that the receipt which is for the purpose of issuance of NBA stamp and seal clearly shows that the said receipt was issued in favour of Ayibatekena Bruce Ebiki whose name happens to be one of the listed names on the processes and as such this court will take the signature on the processes as that of the said Ayibatekena Bruce Ebiki and I so hold. See GAMME INTEGRATED RESOURCES SERVICES LTD VS FRN & ANOR (2017) LPELR – 43012 (CA).

 

In view of the foregoing facts enumerated ab-initio, I resolved the lone issue of determination in favour of the Claimants/Respondents and hold that the suit is competent and as such this court has the jurisdictional competence to try this matter. The Preliminary Objection is hereby dismissed. Parties are to bear their respective cost.

Ruling is hereby entered accordingly.

____________________________________

HON. JUSTICE BASHAR A. ALKALI

                                                            PRESIDING JUDGE

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