UBA PLC v. OGEDOH (2021)

UBA PLC v. OGEDOH

(2021)LCN/15713(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, August 25, 2021

CA/ABJ/CV/13/2021

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

MRS. PATIENCE OGEDOH RESPONDENT(S)

RATIO

THE POSITION OF THE LAW ON WHERE A COURT LACKS JURISDICTION

Needless to say, neither of the parties could confer jurisdiction on the Court when it lacked jurisdiction. In Okolo V Union Bank Ltd (2004) 3 NWLR (Pt 859) at 108, Tobi, JSC held:
“Jurisdiction being the threshold of judicial power and jurisdiction and by extension extrinsic to adjudication, parties cannot by connivance, acquiescence or collusion confer jurisdiction on a Court. Where a Court lacks jurisdiction, parties to the litigation cannot confer on the Court. As a matter of law lack of jurisdiction cannot be waived by one or both parties. It is hard matter of law clearly beyond the compromise of the parties. This because parties cannot conspire to vest jurisdiction in a Court where there is none”
Likewise a Court without jurisdiction, cannot under the canopy of interest of justice, assume jurisdiction. See Action Congress V INEC(2007)18 NWLR (Pt 1065) 50.
The corollary of the above decision is to the effect: where a Court is devoid of jurisdiction in respect of an action neither the parties nor the Court itself can confer on the Court jurisdiction over a matter. In effect, the Respondent’s action before the High Court Maiduguri could not be a pending matter capable of being relisted nor filed a fresh in the Court. It could not be revived upon being struck out. In order words, the case of Panalpina World Transport (Nig) Ltd V J. B. Olandeen (Supra) cited and relied on by the Respondent’s action at the High Court Maiduguri cannot be said to be a pending matter having been struck out for want of jurisdiction. In other words, the computation of time as regards limitation of time save for the time the case was in the High Court before it was struck out shall continue to count after the striking out of the matter as in this case. PER BOLA, J.C.A.

THE POSITION OF LAW ON FILING AN ACTION AFTER THE PERIOD ALLOWED BY A STATUTE

Any action which is filed after the period allowed by a statute is statute barred. Such an action is not maintainable and the operation of the limitation law leaves the plaintiff with a right of action which is dead in law. Accordingly, no Court will have jurisdiction to entertain the action. Where a statute of limitation prescribes a period within action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the period.

WHETHER OR NOT A RULE OF PRACTICE PRESCRIBING A METHOD OF COMMENCING PROCEEDINGS IN RESPECT OF A CAUSE OF ACTION MUST BE COMPLIED WITH

It is settled law that where a statute or a given rule of practice prescribes a method for commencing proceedings in respect of a particular cause of action, it must be complied with and failure of which renders the action initiated irregular and incompetent. See Ogugu V State (1994) 9 NWLR (Pt 366) 1. PER BOLA, J.C.A.

WHETHER OR NOT AN INCOMPETENT SUIT HEARD BY A COURT IS VALID

WHETHER OR NOT PROCESSES FILED AND NOT SIGNED BY A LEGAL PRACTITIONER IS VALID

In the case Chukwujindu V AMCON (2019) LPELR 47318, the Court of Appeal held that the process filed and not signed by a legal practitioner or the Plaintiff is invalid as there is no stamp or authentication. In Section 2(1) and 24 of the Legal Practitioners Act, it is provided that
a writ of summons should be signed by a Legal Practitioner. This is a mandatory requirement of the law and the failure to adhere results in the writ being termed defective, null and void and incapable of invoking the jurisdiction of the Court. See Okarika V Samuel (2013) 7 NWLR (Pt 1352) 19 at 37.
In Braithwaite V Skye Bank (2013) 5 NWLR (Pt 1346), the Court held that a writ of summons is an originating process by which action is commenced. The competence of such process is a pre-requisite for valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. A defective writ cannot activate the Court’s jurisdiction. PER BOLA, J.C.A.

THE POSITION OF LAW ON THE MANNER OF SIGNING OF COURT PROCESSES

ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This appeal stems from the ruling of the National Industrial Court, Abuja Coram Agbakoba J. delivered on 20th day of July, 2018. The ruling arose from a preliminary objection filed by the Appellant challenging the competence of the Respondent’s action at the lower Court on the ground that the action was statute barred. The preliminary objection was dismissed.

Dissatisfied with the decision of the lower Court and pursuant to Order 7 Rule 2 of the Rules of this Court the Appellant filed its Notice of Appeal at the lower Court on 22nd October, 2020. The Notice consisted of three (3) grounds.

The background of this appeal reveals that the Respondent was an employee of the Appellant whose employment was determined in August 2007. On 26/3/2012 the Respondent instituted an action at the High Court of Justice, Maiduguri, Borno State in suit No BOHC/MG/CV/16/2012 against the Appellant in respect of the determination of her employment.

This suit was struck out by the High Court on the ground that it was bereft of jurisdiction to adjudicate on same.

A fresh action was instituted at the National Industrial Court at Abuja Judicial Division by the Respondent on 8th of February, 2018. Reacting to the fresh action, the Appellant, filed a Notice of Preliminary Objection urging the Court to dismiss the suit for being statute barred. After considering the arguments of counsel to both parties, the lower Court ruled as follows:
“…applying the relevant limitation law I find that this case is therefore not statute barred. The Defendant’s Notice of Preliminary objection accordingly lacks merit and is dismissed, without costs”

By leave of this Court granted on 22/10/2020, the Appellant was allowed to filed his Notice of Appeal which was filed on the same date. The record of proceedings was transmitted to this Court on 7/1/2021. The Appellant’s Brief of Argument was filed on 15/01/2021 while the Respondent’s Brief was filed 1/2/2021. The Reply Brief was filed on 24/6/2021. The appeal was heard and Briefs adopted on 1-7-2021.

In the Appellant’s Brief, two issues were distilled for determination namely:
1. Whether the trial Court was right to hold that the Respondent’s suit no NINC/ABJ/39/2018 is not statute barred relying on the case of Sifax Nigeria Limited V Migfo Nigeria Ltd & Another (2016)7 NWLR Pt 1510 at 55-56 (Distilled from Grounds 1 and 2 of the notice of Appeal).
2. Whether the trial Judge was right to assume jurisdiction to hear the claim when the complaint was neither signed by the Plaintiff nor her Counsel. (Distilled from Ground 3 of the notice of Appeal).

The Respondent’s Brief identified two issues for determination. They are:
1. Whether the trial Court was right to hold that the respondent’s suit no NICN/ABJ/39/2019 is not statute barred, relying on the case of SIFAX NIGERIA LIMITED V MIGFO NIGERIA LIMITED & ANOTHER (2016) 7 NWLR Pt 1510 10, at 55-56 (Distilled from Grounds and 2 of the notice of Appeal)
2. Whether the trial Judge was right to assume jurisdiction to hear the claim when the complaint was neither signed by the plaintiff nor her counsel (Distilled from Ground 3 of the notice of Appeal

Arguing Issue No 1, the Appellant’s counsel G. Offodile Okafor, Esq SAN submitted that time began to run when a cause of action accrued. That is, in this appeal, the cause of action began to run when the Respondent alleged she was unlawfully relieved of her employment by the Appellant. He submitted that the decision of the lower Court was predicated on the principle of ratio decidendi in SIFAX’s case. He argued that two steps were necessary in the ascertainment of the ratio decidendi. First, that it was necessary to determine all the facts of the case as seen by the Judge. Secondly, that it was necessary to discover which of those facts were treated as material by Judge. Relying on Daily Times (Nig.) PLC V D S V Ltd (2014) 5 NWLR (Pt.1400) 327 at 352. It was learned Silk’s submission that a Judge who relies on the decision of the superior Court should strike a balance in marrying the circumstance of the case and the one he was determining if different from the instant case. It was argued that the case of Alhaji Haruna Kassim (Trading as Cash stores) V Heruman Ebert (1966-69) NNLR 75 AT 77 referred to by the Respondent was distinguishable from the present case. Therefore, the decision of the Supreme Court in the case was inapplicable to the facts of the present case. That in Alhaji Haruna Kassim’s case the case was struck out with liberty to relist. Whereas in the present case, the High Court matter that was struck out and the matter instituted at the National Industrial Court could not be said to be a continuation of the High Court matter that was struck out.

Referring to the decision of the Court of Appeal in SIFAX case, the Learned Silk argued that a computation of time is never frozen in perpetuity until the suit is heard on the merits or dismissed. That the computation of time shows that time stopped running in the Respondent’s case for a period of eight months being the time the first suit was in Court that is from 23/03/2012 to 21/11/2012. That the computation of time for the new suit filed on 8/2/2018 was not 21/11/2012 when the first suit was struck out by the Borno State High Court. That the statute of limitation will be computed from August 2007 when the cause of action accrued. It was argued that the cause of action did not accrue from the date the first suit was struck out. That is 21st November, 2012. The caseAjijola V Rasaki (2019) 5 NWLR (Pt 1665) 284 at 296-297 was referred to; wherein the statute of limitation was from the date of the accrual of the cause of action up to when the suit was commenced. That in the instant appeal, the cause of action will be calculated from August 2007 to 8th February, 2018 which was period of eleven years. Learned counsel contented that the case of SIFAX (Nigeria) Ltd & Ors struck out on 8/6/2012 and a new suit refiled on the 16th July, 2012, a period of six weeks. A cumulation review shows that the date of the filling of the new suit fell within the statutory period of cause of action which accrued on 26th July 2006. It was submitted that the Sifax’s case was distinguishable from the instant appeal. It was equally submitted that the decision of the trial Court (National Industrial Court) that the Respondent’s suit was not statute barred was in contravention of the principle of law laid down in Adegoke Motors V Adesanya (1989) 3 NWLR (Pt 109), 250 at 265-266. He urged this Court to resolve issue number one in favour of the Appellant.

On the 2nd issue, the Appellant’s Counsel framed the issue whether the trial Judge was right to assume jurisdiction to hear the claim when the complaint was neither signed by the plaintiff nor the Counsel referring to Order 4 Rule 4 (3) National Industrial Court Rules, 2017 which provides.
“An Originating process shall be signed by the claimant or counsel where the Claimant sues through a counsel”

He equally cited the case: Fidelity Bank PLC V Monye (2012) 10 NWLR (Pt 1307)1 at 31, Ugwu and Anor V Ararume & Anor (2017) 6 SC Pt. 1 P.88 on the interpretation of statutes.

Counsel posited that the originating process was a violation of the rules of the National Industrial Court that the signing of the writ of summons is a condition precedent which called for no waiver referring to the decision of the Supreme Court in Elaigwu V Tong (2016) 14 NWLR (Pt 1532) 1. On the legal effect of originating process not being signed, counsel also referred to the case of Elaigwu V Tong(supra). It was further submitted that the writ of summons having not been signed by a legal practitioner as provided for by Section 2 (1) and 24 of the Legal Practitioner Act was incompetent, null and void citing the case Udoeboi V Udousua (2015) 5 NWLR (Pt 1559) 501 at 511-512, where it was held that an unsigned originating process or Court process is a worthless document and a nullity. On the effect of non-compliance, counsel referred to the case Dada V Sikuade (2014) 17 NWLR (Pt 1435) at 114- 115.

Counsel also canvassed that the failure of the Respondent to sign the writ of summons infracted the jurisdiction of the Court referring to the case of Governor of the Ekiti State V Akinyemi (2011) 17 NWLR (Pt 1276) @ 413-414.

In response to the Respondent’s Brief, Counsel argued that a counsel’s stamp and seal do not take the place of signature of the counsel or the litigant. Stamp or seal is addition to and not a substitute of the requirement of signature. Reference was made to the case Tanimu V Rabiu (2018) 4 NWLR (Pt 1610) 505 at 523

Finally, the appellant’s counsel urged the Court to allow the appeal and dismiss the claim.

The Respondent’s counsel formulated two issues for consideration and determination. The first issue is whether the trial Court was right to hold that the Respondent’s Suit No NICN/ABJ/39/2019 was not statute barred relying on the case of Sifax Nigeria Limited V Migfo Nigeria Limited & Anor (Supra). This issue is distilled from Grounds 1 and 2 of the Notice of Appeal.

Arguing the above issued, Mr. Okere Chamberlain of Counsel to the Respondent submitted that the once a cause of action had been filed before the expiration of the six (6) years period provided by the Limitation Act, the effect of the Limitation Act regarding the cause of action had been defeated forever. When the law has been fulfilled, it becomes functus officio. He submitted that time stopped running the moment the action was instituted.

It was argued that once a step can be taken in a proceeding then that cause is said to be alive and very much breathing and the legislature would have no power against it. That this case was protected by “mother justice”. That a case struck out remains in the Court general list until the matter had been heard on the Court general list and until the matter had been heard on the merit. When a matter is struck out there is liberty to relist the same citing the case of Panalpina World Transport Ltd V Olandeen International and Ors(2010)19 NWLR (Pt 1226) 1 at 20.

On the second issue bordering on the failure to sign the complaint by the plaintiff or her counsel, the Respondent’s counsel submitted that the mischief or the jurisprudence behind striking out of unsigned writ of summons or complaint was to ensure that the maker of such writ or complaint was a lawyer who had been duly called to the Bar and his name on the Supreme Court Roll. Referred to the case Ewukoya and Anor V Buari and other (2016) LPELR 40492 (CA).

He submitted that the purpose of signing a document or originating process is mainly for the authentication of such document, that it emanated from a lawyer who had been duly called to Bar and his name on the Supreme Court roll. He referred to the case of Ewukoya & Anor V Buari (supra). It was the contention of the counsel that striking out a writ of Summons/complaint after the requirement of authenticating and identification had been met would amount to stretching technicality to its limit.

It was argued that the purpose of signing a document or an originating process was mainly for the authentication of the document which emanated from a lawyer who had been duly called to Bar, and his name on the Supreme Court roll, he cited the case Ewukoya V Buari (supra).

Referring to the case ofDr Bolaji Akinsanya V Federal Mortgage Finance Ltd (2010) LPELR 3687(CA) which referred to the Black’s Law Dictionary 7th Edition at page 1387 which defined the word “Signature” as a “person’s name or mark written by the person’s or at the person’s direction, any mark as writing used with the intention of authenticating a document is a signature” Flowing from this definition, counsel submitted that it was clear that a person could direct another to affix a signature on his behalf. Counsel also referred to the case: SLB Consortium Ltd V NNPC (2011) 9 NWLR (Pt 125) 317 to the effect that the legal practitioner’s sign, symbol, mark, contraption and Supreme Court number of the Respondent’s Counsel satisfy the requirement of signature on the document.

Concluding, counsel urged this Court to dismiss the appeal in favor of the Respondent.

RESOLUTION OF ISSUES
The issues formulated by the parties are on all fours with each other. They are identical and impari material. They flow from the Grounds of Appeal as contained in the Notice of Appeal filed by the Appellant. Arising from this backdrop, this Court adopts the aforesaid issues for consideration and resolution in this appeal.

The first issue raises the question whether the trial Court was right to hold that the Respondent’s suit No NICN/ABJ/39/2019 was not status barred relying on the case of Sifax Nigeria Ltd V Migfo Nigeria Ltd (supra). The background of this appeal which is not in contention is that the Respondent instituted an action at the High Court of Justice Maiduguri, Borno State in suit No BOHC/MG/CV/16/2012 on 26/3/2012 against the determination of her employment by the Appellant in August 2007. The High Court struck out the action on 21st day of November, 2012 on the ground of lack of jurisdiction.

The Respondent filed a fresh action at the National Industrial Court Abuja Division on 8th February, 2018. On being served with the originating process, the Appellant filed a notice of preliminary objection urging the Court to dismiss the suit for being statute barred. The Appellant contended that the Respondent’s case had been caught by Section 7 (1) Limitation Act Cap 522 LFN, 1990.

In his considered ruling, the trial Judge relying on the case of Sifax Nig. Ltd ruled that the action was not statute barred. Ruling was delivered on 20th July, 2018.

Without doubt, the trial Court predicated its decision that the trial was not statute barred on the case SIFAX Nig. Ltd. In its ruling, the lower Court said as follows:
“the Court of Appeal then proceeded to address what it termed” the recondite nature of the law relating to whether time ceases to run upon the filing of an action by a party which suit is subsequently struck out for the purpose of the limitation law “Here after considering a number of case law authorities the Court of Appeal agreed with the trial Judge that time ceases to run when a plaintiff commences legal proceeding in respect of a cause of question in question. To the Court of Appeal where an aggrieved person commences an action within the period prescribed by status and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to outright dismissal such is still open to be recommenced at the instance of the Claimant and the Limitation period shall not count during the pendency of the earlier suit. In other words, the computation during the pendency of an action shall remain frozen from the filing of an action until it is determined or abates. The Court of Appeal then held that as regards the suit before it time ceased to run from the filing of the suit no HC/L/CS/664/2006 on 9/8/2006 until 8/6/2012 when it was struck out by the Supreme Court. In other words, the suit was not caught by the statute of limitation”.

Applying the decision in Sifax to the application filed by the Defendant/Appellant in the lower Court, the action before the National Industrial Court was ruled not statute barred.

Is the action statute barred or not? The Respondent’s employment was determined by the Appellant in August 2007. She instituted an action at the High Court, Maiduguri, Borno State on 26/3/2012. Four years, seven months after she was relieved of her employment. The suit was struck out in 2018, November 2012, eight (8) months after institution. Fresh case was filed at the National Industrial Court on 8th February 2018 four years, 3 months after the striking out. The fresh case was instituted Ten years 5 months after the determination of the Respondent’ss employment. Minus the eight months, the action was at the High Court before it was struck out, she filed a fresh action at the National industrial Court Nine (9) years, eight months after the accrual of the cause of action.

Does time cease to run upon the filing of the action by the Respondent at the High Court of Borno State which suit was subsequently struck out or when a fresh case was filed in another Court? When does the computation of time begin? Is it when the cause of action arose or at the filing of a fresh action?

The lower Court relying on the decision of the appellate Court in Sifax V Migfo ruled that the action was not statute barred. It held that
“Computation of time during the pendency of an action shall remain frozen from filing of the action until it is determined or abates”

It is apparent that the action that was struck out at the High Court, Maiduguri Borno State, an action commenced in a wrong Court was not the one that could subsists or kept in abeyance. The High Court was bereft of jurisdiction to adjudicate on it. It could be not be relisted or kept in abeyance in the Court. The matter ceased to remain in the Court cause list or the registry. No application can be made for it to be re-listed nor an Order be made by the same Court for it to be put for hearing on cause list. This renders this case distinguishable from the case Alhaji Haruna Kassim V Hermann Ebert (Supra) relied on by the Respondent’s Counsel. Delivering the judgment of the Court, Ademola, CJN held as follows:
“when then was the effect of the Order made by the Judge in the instant case”. It appears to us that the true meaning of the word “Order” was that the case be discontinued as from the date of the Order, but to be kept on the general list of the Court and could be brought back to the hearing after an application to the Court had been made and granted accordingly. When therefore the learned Judge on 31st May, 1963 Ordered that the case be struck out with liberty to apply for it to be relisted, the case in our view, still subsist until an order is made for it to be put on hearing or cause list”
The case of Alhaji Haruna Kassim’s was struck out with liberty to relist. It remained a pending cause until it was relisted. It was not a new suit but an old suit. Whereas, the case in hand instituted by the Respondent at the High Court Maiduguri could not be relisted having been struck out for want of jurisdiction. The respondent was not at liberty to relist same. Consequently, it was not a pending matter having been struck out by the High Court. The decision of the apex Court Alhaji Haruna V Ebert (Supra) is inapplicable to the present case.

It is equally apposite to consider the case of Sifax viz-a-viz the present action. In Sifax’s case they were still in within the ambit of the six year period of limitation as provided by Section 8(1)(a) of the Limitation Law of Lagos and therefore the action could not have been statute barred. In the case in our hand, from August 2007 when the cause of action accrued to 8th February 2018 when the suit was freshly filed at the National Industrial Court Abuja Division, less than eight (8) months the case was pending at the High Court Maiduguri, the fresh action was filed nine years, five months after the accrual of the cause of action in August 2007. Sifax case could not have been an authority upon which the lower Court ruled that the matter was not statute barred. Secondly, in Sifax case, the cause of action arose on 26th July 2006, it was struck out on 8th day of June, 2012 and a new suit filed on 16th July 2012. A period of 6 weeks which shows that the period of filing the new suit fell within the period of limitation. In the present action, the new suit was filed nine years, five months after the accrual of the cause of action.

It is equally pertinent to refer to the decision of Ademola CJN in Haruna Kassim’s case. In that case his Lordship referred to the English case of RE CLAGETT ESTATE FORDHAM V CLAGETT (1882)20 CH.D 637 at 653 where it was held that:
“A cause is said to be pending in a Court of Justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending”

Could the Respondent’s case struck out at the High Court, Borno State be said to be pending after being struck out when it is patently clear that the High Court had no jurisdiction to entertain same? Needless to say, neither of the parties could confer jurisdiction on the Court when it lacked jurisdiction. In Okolo V Union Bank Ltd (2004) 3 NWLR (Pt 859) at 108, Tobi, JSC held:
“Jurisdiction being the threshold of judicial power and jurisdiction and by extension extrinsic to adjudication, parties cannot by connivance, acquiescence or collusion confer jurisdiction on a Court. Where a Court lacks jurisdiction, parties to the litigation cannot confer on the Court. As a matter of law lack of jurisdiction cannot be waived by one or both parties. It is hard matter of law clearly beyond the compromise of the parties. This because parties cannot conspire to vest jurisdiction in a Court where there is none”
Likewise a Court without jurisdiction, cannot under the canopy of interest of justice, assume jurisdiction. See Action Congress V INEC(2007)18 NWLR (Pt 1065) 50.
The corollary of the above decision is to the effect: where a Court is devoid of jurisdiction in respect of an action neither the parties nor the Court itself can confer on the Court jurisdiction over a matter. In effect, the Respondent’s action before the High Court Maiduguri could not be a pending matter capable of being relisted nor filed a fresh in the Court. It could not be revived upon being struck out. In order words, the case of Panalpina World Transport (Nig) Ltd V J. B. Olandeen (Supra) cited and relied on by the Respondent’s action at the High Court Maiduguri cannot be said to be a pending matter having been struck out for want of jurisdiction. In other words, the computation of time as regards limitation of time save for the time the case was in the High Court before it was struck out shall continue to count after the striking out of the matter as in this case.

The facts of this case reveals that the Respondent was relieved of her employment in August 2007. She took out a writ of summon on 26/3/2012 a period of four years and seven months from the date of the accrual of the cause of action. The matter was struck out by the High Court on 21st day of November, 2012 due to lack of jurisdiction. Fresh action was filed on 8th February, 2018 at the National Industrial Court, Abuja five years, 3 months after the action was struck out at the High Court. Excluding the eight months the matter was at the High Court, the matter instituted at the National Industrial Court was filed nine years, 10 months after the accrual of the cause of action in August 2007.

The limitation in respect of simple contract is six years Section 7(1) of the Limitation Act Cap 522 Laws of Federation of Nigeria 1990 provides:
7(1) “The following action shall not be brought after the expiration of six years from the date the cause of action accrued in action founded in simple contract.”

Any action which is filed after the period allowed by a statute is statute barred. Such an action is not maintainable and the operation of the limitation law leaves the plaintiff with a right of action which is dead in law. Accordingly, no Court will have jurisdiction to entertain the action. Where a statute of limitation prescribes a period within action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the period.

Also, where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period laid down by the limitation law for instituting such action had elapsed. See Sylva V Independent National Electoral Commission (2015) 16 NWLR (Pt 1486) 576 at 630 per Okoro JSC; CBN V Okojie (2015) 14 NWLR (Pt 1479) 231 at 278.

To determine whether an action is statute barred, the Court examines the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question accrued and compares it with the date the originating process was filed in Court. Asaboro V Pan Ocean Oil Corporation (Nigeria) Limited (2017) 7 NWLR (Pt 1563)42 at 68.

It is obvious that the present appeal is in respect of the decision of lower Court which dismissed the preliminary objection of the Defendant/Appellant against the competence of the Plaintiff/Respondent action filed in the lower Court in suit No NICN/ABJ/39/2018 and held that the Plaintiff/Respondent’s action was not statute barred, contrary to the contention of the Defendant/Appellant in its notice of objection. The suit before the lower Court was instituted on 8th February, 2018 by the Respondent (Plaintiff) seeking amongst other reliefs declaration that the termination of her employment by the Defendant (appellant) was illegal, unlawful, unjustifiable and against the contractual agreement between the plaintiff and the defendant and an infraction of the plaintiff’s legal right.

In paragraph 14 of the plaintiff’s (Appellant) Statement of fact, it is stated:
“The plaintiff avers that as a result to irregular, improper termination of her employment by the Defendant in September 2007, she been (sic:) unable to secure a job since 2007”.

It is apparent on the face of the plaintiff’s complaint that the action before the lower Court was instituted on 8th day of February, 2018. While the complaint and the statement of fact, the originating processes of the plaintiff (Respondent) reveal that the cause of action accrued in September 2007. Without mincing words, it is crystally clear that the action of the plaintiff/Respondent at the lower Court was instituted more than six years after the cause of action arose. To be precise, 10 years, five months.

Arising from the foregoing, it is undoubtful that the Respondent’s action at the lower Court clearly violated the provision of Section 7(1) of the Limitation Act L. F. N. It rendered the action invalid, dead on arrival at the National Industrial Court having been instituted at the expiration of the limitation period. Undoubtedly, the plaintiff had a cause of action but it was an action that was unenforceable. See Buremoh V Akande (2017) 7 NWLR (Pt 1563) 74 at 105. The action is incompetent. It cannot be maintained to give rise to a valid action. It is statute barred. Issues No 1 is hereby resolved in favour of the Appellant.

Issues No 2 is whether the trial Judge was right to assume jurisdiction to hear the claim when the complaint was neither signed by the plaintiff nor her counsel. An issue distilled from Ground 3 of the notice of Appeal.

Reading through the Records of Appeal, it is clearly revealed that the Complaint of the Plaintiff in suit No NICN/ABJ/39/18 filed on 8th February 2018 was neither signed by the plaintiff nor her counsel. Order 4 Rule 4(3) of the National Industrial Court Rules 2017 states:
“An originating process shall be signed by the claimant or counsel where the claimant sues through a counsel”
It is crystal clear from the provision of NICN rules that an originating process such as a writ of summons or a complaint as in the instant matter requires the signature of the claimant or her counsel where the claimant sues by counsel.

The provision of the above rules is unequivocal and unambiguous. It is plain. It is the decision of the appellant Court and the cardinal principle that where the words in a statute are clear and unambiguous, the Court should give them their ordinary natural and literal meaning in order to bring out the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fail to bring out the intention of the law makers or leads to an absurdity that resort is had to constructive interpretation. See Dickson V Sylva (2017) 8 NWLR (Pt 1657) 167 at 233; Registered Trustees of the Airline Operators of Nigeria V Nigeria Airspace Management Agency (2014) 8 NWLR (Pt 1408) 1 at 41. When the ordinary plain meaning of words used is a statute are very clear and unambiguous, effect must be given to those words without resorting to any intrinsic or external aid. Okotie-Eboh V Manager (2004) 18 NWLR (Pt 905) 142 at 186 -187. In other words, in construing the content of Order 4 Rule 4(3) of the NICN Rules 2017, this Court shall ascribe to its ordinary and literal meaning without resorting to or leaning towards any intrinsic or external aid.

It is equally considered the words “Shall” utilized in Order 4 Rule 4(3).It says that the originating process shall be signed by the Claimant or counsel. It is now well settled that where the provision of a statute are garbed with the word “shall” it connotes that it is imperative for the provision to be obeyed. The word “shall” makes the provision mandatory imposing a word of command. See Corporate Ideal Insurance Ltd V Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405)165 at 193. The corollary of the above decision is that the complaint, mandatorily, must be signed by the Claimant or her counsel. However, neither the Claimant nor her Counsel signed the complaint in the suit the subject matter of the appeal in violation of the provision of Order 4 Rule 4 (3) of the NICN Rules.

It is settled law that where a statute or a given rule of practice prescribes a method for commencing proceedings in respect of a particular cause of action, it must be complied with and failure of which renders the action initiated irregular and incompetent. See Ogugu V State (1994) 9 NWLR (Pt 366) 1.

Likewise, where a suit is incompetent and where the suit was heard by a Court, the proceedings before the Court are a nullity. See W.A.E.C V Akinkunmi (2008)9 NWLR (Pt 1091) 151 at 167-169; D.E.N.R Ltd V Trans International Bank Ltd (2008) 18 NWLR (P1119) 388 at 417, Governor Ekiti State V Akinyemi (2011) 17 NWLR (Pt 1276) 413-414.

In the case Chukwujindu V AMCON (2019) LPELR 47318, the Court of Appeal held that the process filed and not signed by a legal practitioner or the Plaintiff is invalid as there is no stamp or authentication. In Section 2(1) and 24 of the Legal Practitioners Act, it is provided that
a writ of summons should be signed by a Legal Practitioner. This is a mandatory requirement of the law and the failure to adhere results in the writ being termed defective, null and void and incapable of invoking the jurisdiction of the Court. See Okarika V Samuel (2013) 7 NWLR (Pt 1352) 19 at 37.
In Braithwaite V Skye Bank (2013) 5 NWLR (Pt 1346), the Court held that a writ of summons is an originating process by which action is commenced. The competence of such process is a pre-requisite for valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. A defective writ cannot activate the Court’s jurisdiction.
It is not in doubt, the complaint utilized by the claimant to commence an action at the National industrial Court is same as the writ of summons. Both are originating processes filed to commence an action in Court.

Plethora of decided cases have laid down the manner of signing of Court processes. In SLB Consortium Ltd V NNPC (2011) 9 NWLR (Part 1252) 317 at 337-338 the apex Court per Rhodes -Vivour, JSC held as follows:
a. The signature of counsel which may be any contraption
b. Secondly, the name of Counsel clearly written;
c. Thirdly, who Counsel represents;
d. Fourthly, name and address of legal firm.
The complaint of the Respondent (Claimant) as revealed on page 2 of the Record of Appeal establishes clearly that the process falls short of the requirement of the signature of the claimant or her counsel. Invariably, amounting to non-compliance with the Rules of Court and action not initiated in accordance with due process. In Omega Bank V OBC Ltd (2005) All FWLR (Pt 249)1964 at 1993 NIKI Tobi JSC had this to say:
“A document which is not signed does not have any efficacy in law. As held in case examined, the document is worthless and a worthless document cannot be efficacious”
See also Tanimu V Rabiu (2018)4 NWLR (Pt 1610)505 at 524.

It was the argument of the Respondent’s Counsel that on the face of the document complained of by the Appellant, the signature/contraption of the learned counsel for Respondent Chamberlain C. Okere with Supreme Court Number 095890 was affixed on the document and every detail the Appellant or his lawyers seek to know about the maker of the document could be easily be found using the Supreme Court number boldly written in the signature/contraption of the maker of the document. It was the argument of the Respondent that the Supreme Court number boldly written on the signature/contraption satisfied the requirements of signature held in SLB Consortium Ltd V NNPC case. Apparently, the Respondent argument is a reference to the Nigeria Bar Association Seal of the Respondent’s Counsel affixed to the complaint.

The foregoing provokes this Court to ask the question whether the seal of the NBA can appropriately take the place of a signature on the writ of summons and in this case satisfy the provision of Order 4 Rule 4 (1) of the Rule of NICN. Can the seal be a substitute for the requirement of signature? Without any scintilla of doubt the aforesaid Rule does not make mention of stamp or seal of the NBA as a substitute for the signature of the claimant or the Counsel. It specifically made provision for signature. Not seal or stamp of NBA. In any case, the Supreme Court Per Kekere-Ekun, JSC in Tanimu V Rabiu (Supra) at 523, referring to Section 10(1), (2) and (3) of the Rules of Professional Conduct in Legal Profession, 2007 and the case Bello Sarakin Yaki (Rtd) & Anor V Senator Abubakar Bagudu & Ors (2015) LPELR-SC.722/2015, (2015) 18 NWLR (Pt 1491) 288 held as follows:
“In keeping with the effort to weed out imposters and charlatans in the legal profession, the provision reproduced above are directed at the legal practitioner to provide evidence of his qualification to practice law in Nigeria, in addition to his name being on the roll at the Supreme Court in Nigeria. It saves the time that would otherwise have been expended in conducting a search at the Supreme Court to determine a search at the Supreme Court to determine whether the legal practitioner is so qualified”
The above is the main essence of seal or stamp of the NBA in accordance with Section 10 (1) (2) and (3) of the Rules of Professional Conduct. The seal or stamp does not obliterate or dispense with the requirement of a signature on legal documents which include originating processes, pleadings, affidavits or any similar documents. It is not a substitute for the signature of counsel or claimant on the originating processes. Order 4 Rule 4(3) specifically mentioned a signature on the originating processes. It does not provide for seal or stamp of NBA. It is trite and an unassailable legal principle that the express and unambiguous mention of one of the thing in a statuting provision, automatically excludes any other which otherwise would have applied by application with regard to the same subject matter. This is usually captured in the Latin maxim which states “Expressiounisest exclusion alterus” translated to mean “express mention of one thing automatically excludes any other” see Jev V Iyortyom (2015) 15 NWLR (Pt 1483) 484 at 506. In effect, the Respondent Counsel’s contention equating the seal of the NBA on the complaint with the signature of Counsel or Claimant holds no water.

The summary of the above is that the Respondent’s complaint, an originating process is bereft of the signature of the claimant or her counsel. It is therefore not initiated by due process. It is defective, it is null and void and incapable of invoking the jurisdiction of the lower Court. Absence of signature on the originating process is a feature in the case which prevent the Court from exercising its jurisdiction. The matter at the lower Court was not initiated by due process of law and non fulfillment of the condition precedent to the exercise of jurisdiction. See Madukolu V Nkemdilim (1962) 2 SCNLR 341. The lower Court had no jurisdiction in adjudicating in the action instituted by the Respondent. Having found and held that his action is statute barred and the action not commenced in accordance with due process rendering the action null and void ab initio, there is no valid suit before the lower Court.

Consequent thereof, this appeal is allowed. The action before the lower Court is accordingly struck out. There is no order as to cost.

HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading in draft, the leading judgment of my learned brother Ademola Bola, JCA, just delivered. I am in agreement with the reasons therein for the conclusion that the appeal has clear merit and should be allowed.

The law is well settled that an unsigned document is worthless and bereft of any purported value. It is therefore a non-starter in law. See Omega Bank Nigeria Plc v. O. B. C. Limited (2005) All FWLR (Pt. 249) page 1964; (2005) 8 NWLR (Pt. 928) 547.

For this and the well articulated reasons stated in the judgment, which I adopt, the appeal is audaciously meritorious and is hereby allowed. I subscribe to the consequential orders made therein.

SYBIL ONYEJI NWAKA GBAGI, J.C.A.: I have the honour of reading the judgment of my learned brother Ademola Bola JCA.

I concur with all His Lordship’s pronouncement and hold that this action is statute barred and the action not commenced in accordance with due process rendering the action null and void ab initio.
Consequently, this appeal succeeds.