Giuseppe Francesco E. Ravelli -VS- Digitsteel Integrated Services

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP:

HON. JUSTICE AUWAL IBRAHIM, PhD

DATE: 19^th February, 2018 SUIT NO.: NICN/PHC/103/2017

BETWEEN:

IGBANIBO SAMUEL INIKO

CLAIMANT/RESPONDENT

AND

FEDERAL INLAND REVENUE SERVICE
THE ATTORNEY GENERAL

OF THE FEDERATION

RESPONDENTS/APPLICANTS

REPRESENTATION:

G. Aderigha Esq. and I. B. Bett Davies for the Claimant/Respondent.
Oneme-Ihuru Esq. with Mrs U. Brown Esq. for the 1^st Defendant/Applicant.

Emeka Ezerenwa Esq. holding brief of Princess Okoye Esq. for the 2^nd Defendant/Applicant.

RULING

The Claimant in this case filed an Originating Summons dated 23^rd October, 2017 on the same day in which he asked the court to determine the following question:

WHETHER the purported suspension of the Claimant without salary is not unlawful, illegal, null and void and of no effect whatsoever being contrary to the 1999 Constitution of Nigeria, The Public Service Rules and Regulations, The Federal Inland Revenue Service Code of Ethics Guide Book and the Federal Inland Revenue Service Human Resource Policies and Processes?

Whereupon the Claimant prays for the following reliefs:

A DECLRATION that the purported suspension of the Claimant without salary is not (sic) unlawful, illegal, null and void and of no effect whatsoever being contrary to the 1999 Constitution of Nigeria, The Public Service Rules and Regulations, The Federal Inland Revenue Service Code of Ethics Guide Book and the Federal Inland Revenue Service Human Resource Policies and Processes.
AN ORDER that the Claimant be placed on interdiction and be paid half of his salary pending when Judgment will be delivered in Charge Number FHN/YNG/39c/14 purported (sic) termination of the employment of the claimant by the 3^rd and 4^th Defendant is unlawful, null and void.
AN ORDER directing the Defendants to pay the Claimant all his salary arrears from June 2014 to when Judgment will be delivered in this suit.
—————————-
AN ORDER that the Defendants pay to the Claimant the sum of four million naira as general damages for the stress and hardship caused him for the unlawful stoppage of his salaries for this long period.
AN FOR SUCH FURTHER or other orders that this Court may deem fit to make.

The Originating Summons is supported by an affidavit of 14 paragraphs deposed to by the Claimant himself. Attached to the affidavit are Exhibits JP1, JP2, JP3, JP4 and JP5. There is also a written address in support of the Originating Summons.

Upon being served with the processes of the Claimant the 2^nd Defendant on 22^nd November, 2017 filed a memorandum of appearance and a notice of preliminary objection to the claimant’s suit. The preliminary objection is that the court lacks jurisdiction to entertain the claimant’s suit as presently constituted. The ground of the preliminary objection is that the suit is brought under an obsolete statute. It is accompanied with a written address.

Thereafter, the 1^st defendant on 21^st December 2017 filed a notice of preliminary objection dated same date. The objection is that the court lacks the jurisdiction to hear and determine this suit as presently constituted against the Defendant and that the suit be set aside. The grounds for the objection are that:

The Honourable Court cannot effectively determine this action by Originating Summons as it involves substantial dispute of facts or its likelihood.
Incompetent originating process by which this action is instituted robs the court of its competence or jurisdiction to entertain the matter.

The notice of preliminary objection is supported with an affidavit of 8 paragraphs deposed to by one Dazi S. Hoke, a legal officer in the employ of the 1^st defendant. There is also a written address in support.

On the 1/2/2018 the 2^nd defendant adopted his processes in support of the notice of preliminary objection. The Claimant’s counsel and the 1^st defendant’s counsel were not in court. The processes of the 1^st Defendant’s counsel were deemed adopted pursuant to Order 38 rule 3(3) of the National Industrial Court (Civil Procedure) Rules, 2017. The learned Claimant’s counsel did not file any processes in relation to the notices of preliminary objections of the 1^st and 2^nd defendants.

In his written address in support of his notice of preliminary objection learned counsel for the 1^st defendant formulated and argued a single issue for the determination of the court. This is that:

Whether this action can be effectively determined by Originating Summons when issues of substantial dispute of facts or its likelihood are involved?

Arguing the said issue learned counsel submitted that it is trite law that the mode of commencement of any action which contains conflicts of facts or that may lead to substantial dispute on issues of facts cannot be commenced by Originating Summons. That Order 3 Rule 5A of the National Industrial Court Rules, 2012 (As Amended) in its proviso specifically prescribes the mode of commencement when it has to do with conflicting issues of facts or a likelihood. That the proviso states as follows:

Provided that a suit which raises substantial dispute of facts is likely to be involved shall not be commenced by an originating summons, but by Complaint as provided in Rule 4 of this Order.

He submitted that, Originating Summons is used when what is in dispute is the mere construction of documents in respect of which pleadings are unnecessary. As a rule, it will be improper to commence proceedings by Originating Summons where the facts are likely to be in dispute. He referred to the case THE GOVERNOR OF KOGI STATE & ORS V. OBA S. A. MOHAMMED (2008) LPELR-CA/A/79/07 Per OMOLEYE, J.C.A. (Pp.24-26, paras. E-A).

It is now settled beyond all arguments that an originating summons is an unusual mode of commencing proceedings in the High Court, which is confined to cases where special statutory provisions exist for its application. Furthermore, it is used to commence non-hostile proceedings and non-contentious actions where the facts are not likely to be in dispute. It is a method of procedure and not a substitute for commencing contentious suits where the facts are in dispute. The appropriate method for commencing contentious suits is a writ of summons in which what is alleged by the parties will be clearly defined in the pleadings and both parties will be at liberty to lead oral evidence in proof of the averments therein. For under the writ of summons, facts are regarded as holding a pride of place and the fountain head of the Law, in the sense that the facts lead to a legal decision on the matter. Contrariwise, in general terms, originating summons is used for those actions where the facts are not in dispute or likely to be in dispute. When proceedings are properly commenced by originating summons, pleadings are not filed and consequently witnesses are rarely called and examined. Rather, affidavit evidence is mostly used and relied upon. Facts therefore do not have a pride of place or play a central but an infinitesimal role in the proceedings. Proceedings for which originating summons is used usually involve questions of law rather than disputed issues of facts. The merit of the method of originating summons lies in the fact that proceedings commenced thereby are very expeditiously dealt with. In the case of: NATIONAL BANK OF NIGERIA V. LADY A. ALAKIJA & ANOR. (1978) 2 LRN P. 75:- the Supreme Court per Eso JSC (Rtd.) held “inter alia that: “…(2) Originating Summons should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute; (3) Application by Originating Summons should never be a substitute for initiating CONTENTIOUS issues of facts; (4) Where the affidavit of the plaintiff leaves matters for conjecture, Originating summons is not an appropriate procedure.

Learned counsel continued that to buttress this position is the matter of FASHEUN MOTORS LTD VS. UBA LTD (2000) 1 NWLR (PT 640) PG.193 where the Court of Appeal held thus:

It is uncommon or unusual to commence an action in court by way of originating summons. It is restricted to cases where special statutory provisions exist for its use. It is also used when what is in dispute is the mere construction of documents in respect of which pleadings are unnecessary. As a rule, it will be improper to commence proceedings by originating summons where the facts are likely to be in dispute. Thus, if it is not clear whether to commence proceedings by originating summons, the former procedure should be adopted.

That, flowing from the above and juxtaposing this provision with the claims of the Claimant/Respondent which is seeking the reversal of the termination of employment and a declaration that the defendant/Applicant violated the rule of fair hearing and contravened the Public Service Rules, 2008, the present matter can only be substantiated through the exchange of pleadings as these are disputable facts which cannot be resolved through originating summons. He referred the Court to Paragraph 5 of their affidavit in support and submitted that this Honourable Court lacks competence or jurisdiction to determine this matter as presently instituted. He referred the Court to the case of STANDARD CLEANING SERVICE COMPANY V. THE COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY ILE-IFE (2011) LPEL – CA/1/M211/0, Per Iyizoba, J.C.A. (pp. 20-21, Paras. F-D) Ratio 4, ruling on whether an action brought under the wrong originating process robs the court of its jurisdiction held that:

It goes without saying that incompetent originating process by which an action is begun robs the court of its competence or jurisdiction to entertain the matter. See Madukolu v. Nkemdilim (1962) All NLR 589.

He referred the Court to paragraphs 4 and 5 of their affidavit in support and submitted that the Claimant/Respondent’s Originating Summons dated 20^th July, 2012 (sic) is an incompetent originating process.

That in this present case, the declaration, orders and damages being sought by the Claimant/Respondent are substantially controversial, contestable, contentious and disputable which the Defendant/Applicant is ready to challenge using the appropriate procedure as provided by the Rules of this Honourable Court.

That the Claimant/Respondent’s affidavit contains disputed conjectures of fact. He referred the Court to paragraph 5 of their affidavit in support and the case of Ajagungbade 111 vs. Adeye (2001) 11 NWLR (pt. 738) pg. 126, where the Honourable Court candidly spelt out the suitability and applicability of Originating Summons.

(a) Originating Summons should only be applicable in the circumstances where there is no dispute on questions of facts or even the likelihood of such dispute;

(b) Application by Originating Summons should never be a substitute for initiating contentious issues of facts; and

(c) Where the affidavit of the Plaintiff leaves matters for conjecture, originating summons is not appropriate procedure.

That interestingly, the Court of Appeal in unanimously dismissing the appeal of the Appellant and upholding the decision of the High Court of Lagos State in the suit between Adedipe vs. Theophilous (2005) 16 NWLR (Pt. 951) p. 253 in interpreting Order 59 of the High Court of Lagos State (Civil Procedure) Rules 1994 reaffirmed their position thus:

…In the instant case, the issue raised in the affidavit evidence of parties is a contentious claim of title to land. In the circumstances, the trial court was right when it held that the issue could not be resolved under an originating summons proceedings and ordered parties to file pleadings as a prelude to hearing oral evidence from parties.

Furthermore, per Ogunbiyi JCA (as he then was) at pages 272-273, paras E-A succinctly lamented the Appellant counsel’s use of originating summons in contentious issues:

…Learned appellant’s counsel wishes to embark upon a short cut procedure to achieve that which cannot be contained under Order 59 supra as contemplated. The subject matter is contentious because the facts are in dispute. He cannot eat his cake and have it as it would amount to short procedure adoption which the law does not allow in the circumstances. It has been held in Oba Oyewumi vs. Oba Osunbade & Ors (2001) FWLR (Pt. 82) 1691 @ 1693 that hostile proceedings cannot be initiated by Originating Summons.

It suffices to categorically state here that there is a dispute before this Honourable court. This is in analogy with what His Lordship sagaciously opined in AG FEDERATION VS. AG ABIA STATE (2001) 11 NWLR (PT.725) 690 at 737 per Belgore JSC:

To my mind a dispute involves acts of argument, controversy, debates, claims as rights whether in law or fact, varying opinions, whether passive or violent… I will not close the category of dispute.

Learned counsel submitted that the claims made by the Claimant/Respondent in the originating summons are controversially contentious and disputable facts which need to be set out in pleadings contained in a writ of summons. The Defendant/Applicant cannot ventilate its defense with a mere counter affidavit. The Defendant/Applicant can only do this by exchange of pleadings through a COMPLAINT. He referred to Rule 4 of the National Industrial Court Rules of Practice Direction 2012.

He urged the Honourable court in the interest of justice and fairness to resolve these issues in favour of the Defendant/Applicant as contained in this Preliminary Objection.

The learned Claimant/Respondent’s counsel did not file any response to the 1^st Defendant’s written address despite asking the court for time and was so obliged on the 15/01/2018. In the circumstance therefore, the court has to determine the preliminary objection on the basis of the arguments of the 1^st Defendant alone.

Having gone through the arguments and submissions of the learned counsel for the 1^st Defendant and also having examined the originating processes of the Claimant/Respondent in this suit, the sole issue for determination in this application is whether or not this suit has been properly commenced by way of Originating Summons?

Before going into the merits of the preliminary objection let me make a remark or two on the processes of the 1^st defendant/applicant’s counsel. Needles to say it is full of typographical errors which tend to misrepresent the true position of things. Learned counsel should always ensure that the processes to be filed in court are properly proofread and all corrections effected before they are filed. Secondly, the learned 1^st Defendant’s counsel was still referring to the 2012 provisions of the Rules of this Honourable Court made in 2012. That in fact was an amendment to the 2007 Rules. The correct position now is that both the 2007 Rules and the amendment made in 2012 have been revoked by the National Industrial Court (Civil Procedure) Rules, 2017 which happens to be the extant Rules of practice of this Honourable Court. Learned counsel should always endeavor to find out the subsisting law before proceeding to make any submissions on such law before the court.

Back to the preliminary objection, the sole ground of objection raised by the 1^st defendant/applicant is that the suit was not properly commenced by originating summons because there are contentious facts to be determined and the law is that originating summons is not the appropriate procedure for commencing proceedings with contentious facts or even likelihood of dispute of facts. The question is whether the suit in fact has contentious facts? I have earlier on reproduced the reliefs sought by the Claimant in this case. The claim basically is that the 1^st defendant was wrong to have suspended him without recourse to the Public Service Rules as well as the Code of Ethics Guide Handbook of the Federal Inland Revenue Service, the1^st Defendant. Furthermore, in paragraph 11 of the affidavit in support of the Originating Summons the claimant/respondent deposed that his salary was totally stopped. He wrote to a letter through his solicitors requesting for the payment of the said salary. The interesting point also is that the supporting affidavit shows that the suspension and stoppage of salary of the claimant was as a result of the on-going criminal trial against him following allegation and arraignment on criminal charges against him reported by the 1^st defendant.

The learned counsel for the 1^st defendant has submitted that the depositions in paragraph 5 of their affidavit shows that there are contentious facts in the suit of the claimant/respondent. For ease of reference let me reproduce the said paragraph 5 of the affidavit in support of the Notice of Preliminary Objection. The said deposition reads:

That I was informed by Ayuba Kwari, counsel handling the matter at Head Office, Revenue House, No. 20 Sokode Crescent, Wuse Zone 5, Abuja on 7^th Nov, 2017 at around 11:30am in the morning and I verily believe him as follows:

That the issue raised by the Claimant in his originating summons dated 23^rd October, 2017 raises substantial dispute of facts.
That he knows as a fact that the Claimant’s affidavit in support of the originating summons dated 23^rd October 2017 contains depositions of contentious issues of fact, determination of which would require calling of witnesses for oral evidence.
That he knows as a fact that Honourable Court’s Practice Direction of 1^st July, 2012 Proviso to Order 3 Rule 5A (2) directs that, suits which raise substantial issue of fact shall not be commenced by originating summons but by Complaint.
That originating summons as a mode of commencing an action is usually used in matters that involve questions of law rather than disputed issues of facts.
That he knows as a fact that the cause of action brought before this Honourable Court has to do with termination of employment of the Claimant by the Defendant which does not only end in the construction of certain guidelines of employment but also raises fundamental and substantial disputed facts.
That the allegation that his suspension is unlawful raises issues of facts which cannot be determined by this originating process.
That the allegation that his suspension is contrary to the 1999 Constitution cannot be determined without substantiating facts.
That the admissibility and authenticity of the documents the claimant is relying upon cannot be determined by this originating summons.
That the choice of the Claimant to determine this matter by originating summons contrary to the rules of this court is a fundamental error of substance which would adversely affect the Defendant in ventilating its defence to the action.
That the Claimant embarked on a short cut procedure by commencing this action via originating summons contrary to rules of this court.
That determination of this matter by originating summons will deny the defendant/applicant the right of fair hearing as required by the principles of natural justice.

The point here is that all the depositions are devoid of facts but rather the opinions and conclusions of the said counsel who provided the information. The depositions are about the allegation that the affidavit of the Claimant in support of the originating summons contain contentious facts without stating those contentious facts, particularly what makes them contentious. The Claimant says he is facing trial before the Federal High Court for criminal charges. He says he was suspended without salary. He says that he wants to be paid half salary pending the conclusion of the criminal trial and the verdict by the Federal High Court. He says that his suspension is contrary to the 1999 Constitution, the Public Service Rules, and above all the Federal Inland Revenue Service Code of Ethics and FIRS Human Resources Policies and Processes in terms of the stoppage of the whole of his salary. The aspect of the case of the Claimant that is contentious, to my mind, is whether the said suspension is indeed contrary to the provisions of the documents which the claimant has alleged. Can this dispute be determined by means of originating summons?

The law is that cases with contentious facts or disputes of facts that cannot be determined from affidavit evidence alone must not be commenced by means of originating summons. The rules of this Honourable Court, National Industrial Court (Civil Procedure) Rules 2017, by Order 3 rule 1(1)(a), rule 16(1) and (2), and proviso to rule 17(1)(c) provide for the commencement of proceedings by way of originating summons before the court. The rules provide thus:

Order 3 Rule 1(1): Civil Proceedings in the Court may be commenced by-

(a)……..

(b) Originating Summons; Forms 45, 46.

Rule 16

(1) Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may by originating summons apply to the Court for the determination of any question of construction arising from the instrument and for a declaration of the rights of the person(s) interested, in so far as such question of construction arises from a subject matter over which the Court has jurisdiction.

A party activating the interpretative jurisdiction of the Court shall indicate with sufficient particularity the provisions or part of the document sought to be interpreted.

Proviso to Rule 17(1)(c):

Provided that where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of originating summons, but by Complaint as provided in rules 8 and 9 of this Order.

These provisions undoubtedly provide for the commencement of action before this Honourable Court by means of originating summons but as the proviso to Order 3 Rule 17(1)(c) shows, where there is substantial dispute of facts or likelihood of involvement of substantial dispute of facts then the proper means of commencement is by Complaint. It is important to point out that the claimant has specified the provisions of the documents he wants the court to interpret and apply to his case. This is in line with the provisions of Order 3 Rules 16(1) and (2) of the National Industrial Court Rules, 2017.

Furthermore, the criteria for adopting originating summons was re-stated by Garba JCA, pp. 24-26, Paras. E-D, in the case of Nigerian Institute of Estate Surveyors and Valuers vs Hydra Properties Ltd & Ors (2017) LPELR-43137 (CA) when he held with regard to the provisions which are in pari materia with those of this Honourable Court as follows:

Learned counsel are right that the provisions of the Federal High Court Rules have specifically provided for when a suit may be commenced or instituted in that Court by way of originating summons. Order 2 Rule 2 of the extant applicable Rules at the time the suit was commenced provide that: –

(2) Proceedings may be begun by originating summons where-

(a)The sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or

(b)There is unlikely to be any substantial dispute of fact

These provisions are clear unambiguous and plain in their tenor and intent. Provisions, in pari materia, were interpreted and applied in many cases by the Courts including the cases of Obasanya vs. Babafemi, Keyamo vs. House of Assembly and Akibu vs. Race Auto Supply Limited (all supra) cited by the learned counsel in their respective briefs. The position of the law as to when it would be proper and appropriate to commence an action or a suit by way of originating summons as provided by the above provisions was restated in the case of Wakwah vs. Ossai (2001) 2 NWLR (725) 542 where it was held that:

A party may commence a suit by an originating summons where: –

(a) The main question is likely to be on the construction of a question law, deal, will, contract or other questions of law;

(b) It is unlikely that there is substantial dispute of facts.

See also Bassey vs. Minister of Defence (2006) All FWLR (343) 1799, Etim vs. Obot (2010) 12 NWLR (pt. 1207) 108.

The emphasis in all the authorities is that originating summons is only appropriate and proper in cases in which there is no likelihood that a dispute may arise as to facts which may or would call for proof and that such summons are meant for primarily, interpretation of Statutes or documents about which issues of facts likely to be in dispute or disputed are not involved. So, where issues are raised about facts which the parties may dispute or in fact by their nature, call for proof, then, originating summons cannot and should not be employed or used in commencement of the suit.

The originating summons procedure therefore is not appropriate where there is conflict of facts which cannot be resolved by affidavit evidence. However, where the conflict of facts can be resolved by affidavit evidence, it means that originating summons can be employed to initiate and have the dispute resolved by the Court. In the case of Hon. Bassey Etim vs PDP & Ors (2016) LPELR-40129 (CA) the court of Appeal, per Otisi JCA, at pp. 25-26, paras B-D, held that:

There is no doubt that it is not all cases where there is conflicting affidavit evidence that originating summons cannot be employed. Where there exists documentary evidence upon which the Court may ground its decision, the matter may be heard and determined on such evidence; Nwosu vs Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688.

Having examined the processes of both the Claimant and the respondents it is quite clear that this suit has only two main or principal issues. These are the propriety of the suspension of the claimant which was allegedly done without fair hearing as well as the total stoppage of the Claimant as against giving him half of his salary pending the conclusion of the criminal trial against him. Both issues are primarily issues of law which can be argued on the basis of the written arguments and submissions of the parties. The facts are already in the affidavit and counter-affidavit of the parties. There is no substantial dispute over the fact of the employment and status of the claimant or on his alleged suspension without pay. There is also no dispute over the fact of his facing trial over the criminal allegations. The learned 1^st defendant/applicant’s counsel has canvassed the point that the suit was about termination of the appointment of the Claimant. I do not agree. This is not borne out by the facts in the processes.

Therefore, in the circumstance I have no difficulty in finding and holding that this suit can be heard and determined as it is presently constituted and having been commenced by originating summons. The preliminary objection of the 1^st defendant fails and is hereby dismissed.

On the 2^nd defendant’s preliminary objection, the learned counsel in his written address in support of the preliminary objection formulated and argued two issues for the court’s determination as follows:

Whether, in view of the circumstances of this suit can the Claimant institute this suit under an obsolete statute?

Whether regard being had to Order 1 Rules 1 and 2 of the National Industrial Court (Civil Procedure) Rules, 2017 the Claimant’s Originating Summons before the Honourable Court is competent?

Arguing issue 1, learned counsel stated that in Oxford Advanced Learners Dictionary, the word ‘obsolete’ means something that is no longer used because something new has been invented. Something out of date. That in P RAMANATHA AIYAR’S ADVANCED LAW LEXICON ENCLYCLOPAEDIC LAW DICTIONARY 4^TH Edition, @ 3324 the word Obsolete “means not enforced, that is no longer practiced, out of date, said of a law or practice which has ceased to be enforced or be in use by reason of change or manner and circumstances, no longer functional, a product gone out of date. Discarded, discussed or antiquated. It is cases of unfitness arising from whatever cause. Whether it is due to total destruction or suppression by new invention”.

That Order 1 Rules 1 and 2 of the National Industrial Court of Nigeira (Civil Procedure) Rules, 2017 states that: (1) “The National Industrial Court Rules, 2007 and Practice direction, 2012 are hereby revoked”.

(2) “These Rules may be cited as the National Industrial court of Nigeria (Civil Procedure) Rules, 2017 and shall come into effect on the 5^th day of January, 2017”.

Learned counsel then submitted that the claimant filed this suit on 23^rd of October, 2017 when the old rule – National Industrial court of Nigeria (Civil Procedure) Rules, 2007 is no more under usage but has been revoked. At page 8 paragraph 3 of the claimant’s written address in support of his affidavit, he unequivocally stated that “The application is brought pursuant to Order 3 Rule 5A Sub Rule (1) and (2) of the National Industrial court of Nigeria Rules 2007…”

In the case of ATTORNEY GENERAL OF THE FEDERATION VS. ALL NIGERIA PEOPLES PARTY (ANPP) (2003) 15 NWLR (PART 844) 614 R.6, the Court held that “on prospectively of the Constitution and other Statute. A constitution, like other statutes operates prospectively and not retrospectively unless it is expressly provided to be otherwise…”

See also OLANIYI VS. AROYEHUN (1991) 5 NWLR (PT 194) 652 referred to pg 667 PARA. C-d.

On the effect of expiration of an enactment, the court held in A-G Federation vs All Nigeria People’s Party, supra, at p. 622 R. 25 that “By virtue of section 6(2) of the Interpretation Act, when an enactment expires, lapses, or otherwise ceases to have effect, the provisions of section 6(1) of the Act shall apply as if the enactment had been repealed…”

That the law under which the claimant brought this suit has been revoked, discarded, out dated, ceased to be in force and no more in use since 5^th day of January, 2017 which made this suit incompetent and nugatory. There is no provision of the new National Industrial Court Rule that states that the 2016 Rule it will run retrospectively. Also by the authority of the above cited cases and the provisions of the Interpretation Act, he is disqualified to institute this case under a statute that has expired.

Counsel urged the Court to refuse the application of the claimant by dismissing this suit for being grossly frivolous.

Aruing Issue two, learned counsel stated that the law is trite without any authority to the contrary, that before a court can exercise its jurisdiction to entertain suit, three basic conditions must be fulfilled by the litigant, who initiated the action. They are as follows:

The court must be properly constituted.
The subject matter of the suit must be within the jurisdiction of the court.
The suit must come before the court having been initiated by due process. See MADUKOLU VS. NKEMDILIM (1982) 1ALL NLR (PT.4) 587 AT 597.

That by Order 1 Rules 1 and 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 shall come into effect on the 5^th day of January, 2017. He submitted that the claimant ought to follow the laid down rule provided by an existing law in instituting this originating summons before the jurisdiction of this court can be invoked by him. There is no more provision for commencing an action in the National Industrial Court with 2007 National Industrial Court Rules. The claimant’s suit seeking reliefs in this matter through the old and obsolete rule is grossly incompetent and the court lacks jurisdiction to entertain same. Counsel submitted that this action was instituted without due process of law.

That the claimant’s suit having been initiated by a wrong and obsolete law is incompetent and accordingly this Honourable court lacks the jurisdiction to adjudicate on same. In MADUKOLU VS. NKEMDILIM (supra) Bairamain F.J (as he then was) held that: a court is incompetent when inter alia;

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.

The Supreme Court in that case further stated that:-

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided for the defect is extrinsic to the adjudication.

He continued that it is pertinent to state here that the principle of law that “an action comes before the court initiated by due process” as stated in MADUKOLU VS NKEMDILIM (supra) was cited with the approval of the full Supreme Court in the celebrated case of A.G. Lagos State vs Dosunmu (1989) NWLR Part 111 per Oputa JSC at pages 556-570.

He then urged this Honourable Court to decline jurisdiction in this suit. That in the immortal words of NWODO JCA IN DODODO VS EFCC (2003) NWLR (PART 133) PAGE 468 at page 501, to wit:-

It is trite law that once a statute has prescribed a particular procedure only(sic) other mode of its exercise is excluded.

Also in DANGOTE VS. C.S.C PLATEAU STATE (2001) 9 NWLR (Part 717) p 132 per Karibi Whyte JSC at P 153 paragraphs b – c stated that:-

It is a well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy noncompliance with or departure from such a procedure is fatal to the enforcement of the remedy.

Learned counsel then contended that noncompliance with the existing statute in this suit is not a mere irregularity but a fatal error which goes to the root of jurisdiction. That the present application before this Honourable Court is incompetent and a nullity, and the proper order that the court can validly make is one of dismissal of the action and not merely to strike it out. He referred to NPA PLC V. LOTUS PLASTIC LTD (2005) 19 NWLR, (PT 959) PAGE 158 AT 189 paragraph f-g.

That on the effect of failure to comply with procedure prescribed by law for commencement of action, His lordship, MARIAM ALOMA MUKHTAR in AGIP NIG LTD V. AGIP PEROL INT’L (2010) 16 NWLR (PT 1219) 271 S.C. stated thus:

Where a statute or rules of court provides for a procedure for the commencement of an action, failure to follow that procedure, renders any suit commenced otherwise incompetent. And once there is defect in competence , it is fatal because it renders the proceedings a nullity.

He urged the court to refuse the prayers of the Claimant by dismissing this suit for being grossly incompetent in law.

The learned Claimant’s counsel did not file any process in reaction to the notice of preliminary objection of the 2^nd defendant. The crux of the learned 2^nd defendant/applicant’s application is that the suit was brought under an obsolete law. In the main argument of the learned counsel he simply referred to the fact that the learned claimant’s counsel has brought the suit pursuant to a wrong statute, namely, the repealed National Industrial Court Rules, 2007 as amended by the Practice Direction of the Honourable President made in 2012. The truth, however, is that there is a misconception on the part of the learned 2^nd defendant’s counsel. The law is that a relief sought under a wrong law does not make same incompetent. In the case of Chevron Nigeria Limited vs Theophilus Nwuche & Ors (2014) LPELR-24291 (CA) the Court of Appeal held that a claimant cannot be refused his claim simply because he brought his case under a wrong law. Ige JCA held as follows at p. 43 paras B-G:

This is because of the settled position of the law that a court will not turn its back against a party in litigation merely because he has proceeded to seek for determination of an issue or matter under a wrong law. The Court will decree in favour of such a litigant relief under the relevant and appropriate law if he/she is able to prove or establish his or her right to the relief he or she is seeking. I call in aid the case of Mike Omhenke Obomhense vs Richard Erhahon (1993) 7 NWLR (Pt. 303) 22 at 40 F-G where Karibi-Whyte, JSC relying on the earlier decision in Falobi vs Falobi said:

I agree that the principle is now well established that where a relief or remedy claimed under a wrong law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong law relied upon. See FALOBI v. FALOBI (1976) NMLR 169. This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct law applied. This is the critical issue in the application before us.

The rule of court relied upon by the claimant in this case has been replaced by another provision in Order 3 Rule 1 (1)(b) of the National Industrial Court (Civil Procedure) Rules, 2017 which allows the Claimant to bring an originating summons before this Honourable Court. In the circumstance therefore, it is my view, which I so hold that the preliminary objection of the 2^nd defendant/applicant lacks merit. I accordingly hereby dismiss same.

On the whole, the two preliminary objections of the 1^st and 2^nd defendants fail and are hereby dismissed. The matter shall proceed to hearing. I make no order as to costs.

Ruling is entered accordingly.

Hon. Justice Auwal Ibrahim, PhD

Presiding Judge