UBA v. OJO
(2021)LCN/15717(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, December 01, 2021
CA/L/289/2016
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
MRS. ISSEY CELESTINA AKINLOLU OJO RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is the live wire that determines the Court’s competence to adjudicate on matters brought before it. It is a threshold which a Court must possess before it can validly hear and determine any suit brought before it. Eze Okorocha vs. U.B.A. & Ors. (2018) LPELR-45122 (SC) where the Supreme Court recently held as follows:
“It is trite law that jurisdiction is the life wire of any case and is a threshold which is so fundamental that any decision reached by any Court of law, no matter how superb or beautiful such a decision is, it is a nullity once such trial Court, Tribunal or appellate Court lacks jurisdiction to determine or adjudicate on the matter or appeal.”
In Kalu vs. Odili (1992) 5 NWLR (Part 240) 130 at 188, the Supreme Court stated the position clearly thus:-
“The question whether a Court has jurisdiction in a matter before it, is a question of law and requires no leave before an appeal can be filed against it.” PER BAYERO, J.C.A.
THE CARDINAL RULE OF INTERPRETATION OF STATUTES
It is a cardinal rule of interpretation of statute or rules that where the provisions are clear and unambiguous, the duty of the Court is to simply interpret the clear provisions by giving plain wordings their ordinary interpretation without more. See Abacha vs. Federal Republic of Nigeria (2014) 6 NWLR (Pt. 1402) 43, 92 and Action Congress vs. Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223, 249. Order 4 Rule 4, as set out above, is clear and unambiguous. It imposes a duty on a Claimant or his Counsel, on presenting any originating process for filing and sealing to have that originating process signed by the Claimant or his legal practitioner. The position of the Apex Court on the signing or authentication of originating processes must serve as the beacon for the interpretation of the rules. In the case of Okarika vs. Samuel (2013) 7 NWLR (Pt. 1352) 19, 43, Peter Odili, J.S.C., held that:
“The full Court of the Supreme Court held firmly and following in the footsteps of Okafor vs. Nweke (2007) 3 SCNJ 185, (2007) 10 NWLR (Pt. 1043) 521 that once the initiating process, be it writ of summons or notice of appeal is not signed or authenticated either by the litigating party or the legal practitioner on his behalf then that process is invalid and the jurisdiction of the Court ousted. The defect is taken as incurable. This Court has taken the same view as demonstrated in the following cases, to wit; Keystone Bank Ltd vs. J.O. Adebiyi & Sons (Nig) Ltd. (2015) 1 NWLR (Pt. 1439) 98, 111 and Sun Publishing Ltd vs. Leaders & Co. Ltd (2016) 7 NWLR (Pt. 1510) 1, 7.” PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal is predicated upon the judgment of the Lagos Division of the National Industrial Court (lower Court) presided over by O.A Obaseki-Osaghae, J., delivered on 1/2/2016 in the Suit No: NICN/LA/497/2012, wherein the Court found in favour of the Respondent herein (who was the Claimant in the lower Court). The Respondent had initiated the suit against the Appellant (Defendant in the lower Court) vide a Complaint and Statement of Fact, together with other relevant Court processes, as reproduced at pages 1-122 of the Record of Appeal. The Appellant, who was the Defendant in the suit, upon being served with the foregoing documents, accordingly filed a Statement of Defence, as well as other relevant processes as contained in pages 123-142 of the record.
The Appellant, dissatisfied with the said judgment, filed its Notice of Appeal on 18/2/2016, as reproduced at pages 449-451 of the Record of Appeal. The Appellant’s Brief of Argument was filed on 12/4/20 with three (3) issues for determination. Thus:
i. “Whether the lower Court had the competence and jurisdiction to hear and determine the Claimant’s suit when the complaint that initiated the proceedings before the Court was neither signed by the Claimant nor by her legal practitioner as required by law.”
ii. “Whether the lower Court was right in awarding the sum of N7,880,979.36 (Seven Million, Eight Hundred and Eighty Thousand, Nine Hundred and Seventy Nine Naira, Thirty Six Kobo) as damages for harassment and humiliation in the work place.”
iii. “Whether having regard to the fact that the Claimant resigned from her employment, the Honourable Court was right in awarding to the Claimant the sum of N1,739,632.14 (One Million, Seven Hundred and Thirty-Nine Thousand, Six Hundred and Thirty-Two Naira, Fourteen Kobo) as three months salary in lieu of notice.”
The Respondent’s amended Brief of Argument was filed on 6/6/2017 wherein three (3) issues are distilled for determination thus:
i. “Whether the Claimant or her legal practitioner duly complied with the rule of procedure of the lower Court in initiating this suit at the lower Court or whether the lower Court was right in assuming jurisdiction over the suit.”
ii. “Whether the Court was right in awarding the sum of N7,880, 979.36 (Seven Million, Eight Hundred and Eighty Thousand, Nine Hundred and Seventy Nine Naira, Thirty Six Kobo) in favour of the Claimant /Respondent.”
iii. “Whether the holding of the Lower Court in awarding the sums of N1,739,632.14 (One Million, Seven Hundred and Thirty-Nine Thousand, Six Hundred and Thirty-Two Naira, Fourteen Kobo) awarded to the Claimant was right.”
It is apt to note that the Respondent at paragraph 2.00 of the amended Respondent’s Brief of Argument, incorporated preliminary objection to the competence of this appeal. The grounds, on which the objection was premised, are as follows:
a. “That the Appellant did not obtain (sic) the leave of the Appellate Court before the appeal was filed which is contrary to the rules of the Lower Court, that is the National Industrial Court of Nigeria (Order 64 Rule 14 (e))”
b. “That the Appellant did not seek and obtain the leave of the Appellate Court as stated in Section 243(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).” The Appellant, in the Reply Brief filed on 6/11/2018, responded to the preliminary objection. I will consider and determine the Preliminary objection first, if it succeeds, the Appeal ends there. If it is overruled, the Court will determine the Appeal on the merits. The Respondent’s Counsel argued that the instant appeal, as filed by the Appellant, vide the Notice of Appeal filed on 18/2/2016, was without the requisite leave of Court and submitted that same offends the provision of the Rules of the lower Court especially the provisions of Order 64 Rule 14(e) of the said rule. It was the contention of the Respondent in the preliminary objection that the failure of the Appellant to seek the leave of this Court also offends the provision of Section 243 (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that this Court lacks the competence to hear and determine the appeal – Madukolu vs. Nkemdilim (1962) 1 SC ALL NLR 581 and Adeyemi vs. Opeyori (1976) 9-10 SC 31.
In the Appellant’s reply, it was asserted that the appeal was filed to challenge the jurisdiction of the lower Court to hear and determine the Respondent’s suit. That the Appellant need not to obtain leave of Court to challenge the decision of the lower Court which he contended was given without the requisite jurisdiction-Eze Okorocha vs. U.B.A. & Ors. (2018) LPELR- 45122 (SC) 17.
RESOLUTION OF THE PRELIMINARY OBJECTION
Jurisdiction is the live wire that determines the Court’s competence to adjudicate on matters brought before it. It is a threshold which a Court must possess before it can validly hear and determine any suit brought before it. Eze Okorocha vs. U.B.A. & Ors. (2018) LPELR-45122 (SC) where the Supreme Court recently held as follows:
“It is trite law that jurisdiction is the life wire of any case and is a threshold which is so fundamental that any decision reached by any Court of law, no matter how superb or beautiful such a decision is, it is a nullity once such trial Court, Tribunal or appellate Court lacks jurisdiction to determine or adjudicate on the matter or appeal.”
In Kalu vs. Odili (1992) 5 NWLR (Part 240) 130 at 188, the Supreme Court stated the position clearly thus:-
“The question whether a Court has jurisdiction in a matter before it, is a question of law and requires no leave before an appeal can be filed against it.”
A cursory look at the Notice of Appeal contained at Pages 449 – 451 of the Record of appeal and the complaint filed by the Respondent which initiated the proceedings (Pages 2 – 3 of the Record of Appeal) will reveal that it borders on the jurisdictional issue that the initiating process was not signed by the Respondent or her legal practitioner. This is an issue of law that leave of the lower Court or this Court is not required to file this Appeal. See Kalu vs. Odili (Supra). The P/Objection is therefore unmeritorious. It is accordingly dismissed by me.
In the main Appeal, Appellant’s Counsel, Mr. Matthew Esonanjor, Esq., made reference to the complaint filed on 27/9/2012 in the lower Court by the Respondent and submitted that the complaint by the Respondent/Claimant which initiated the suit was not signed as required by law; placing reliance on the provisions of Order 3 Rules 1 and 4; Order 4 Rule 4(3) and Order 6 Rule 1(2) of the National Industrial Court Rules, 2007. Learned Counsel stressed that the lower Court lacked jurisdiction to hear and determine the Respondent’s suit as it did – Okarika vs. Samuel (2013) 7 NWLR (Pt 1352) 19 at 43; and Buhari vs. Adebayo (2014) 10 NWLR (Pt 1416).
Counsel argued that even the subsequent amendments made to the said Complaint, suffices not to cure the defect -Ministry of Works & Transport, Adamawa State vs. Yakubu (2012) 6 NWLR (Pt. 1351) 481 at 496 and Sections 2(1) and (2 ) of the Legal Practitioners Act.
On the propriety or otherwise of the award, by the lower Court, of the sum of N7,880,979.36 (Seven Million, Eight Hundred and Eighty Thousand, Nine Hundred and Seventy Nine Naira, Thirty Six Kobo) to the Respondent as “general damages for harassment and humiliation in the work place”, it was the Appellant’s contention that the Respondent did not have such claim in the suit filed in the lower Court. Learned Counsel argued, vide decision in U.B.N. Plc vs. Chinyere (2010) 10 NWLR (Pt. 1203) 453 at 475 that, even in the event of a wrongful termination of employment, the “damages awardable is the salaries for the length of time during which notice of termination would have been given…” It was contended that the lower Court erred in awarding the said damages as it lacked the basis in law – Edebiri vs. Edebiri (1997) 4 NWLR (Pt. 498).
In the similar vein, learned Counsel argued that the lower Court erred when it awarded the further sum of N1,739,632.14 (One Million, Seven Hundred and Thirty-Nine Thousand, Six Hundred and Thirty-Two Naira, Fourteen Kobo) in favour of the Respondent as three months’ salary in lieu of notice, contending that the Respondent failed to prove that she was harassed to resign her appointment by the agents of the Appellant. Counsel submitted that the award of the said damages has no basis in law.
The Respondent’s Counsel who had set down three issues which I have reproduced earlier in the course of this judgment, submitted on the issue of the competence of the complaint filed by the Respondent in the lower Court that the Respondent complied with the provision of Order 3 Rule 1 of the Rules of the National Industrial Court Rules (2007). It was argued that the requirement in the rule of the lower Court ‘only permits the Registrar to sign the General Form of Complaint’, and that the rule “only provides that a lawyer who is issuing same (the Complaint), on behalf of the Claimant, shall endorse his name therein”. Learned Counsel, whilst relying on the provision of Section 122 (e) of the Evidence Act, 2011 and the decision inIbodo vs. Enarofia (1980) 3 – 4 SC 42 at 58 – 59, urged the Court to take judicial notice of the “Form 1” which was General Form of Complaint of the lower Court relying on the persuasive holding of the lower Court in Suit No. NICN/IB/51/2015 (unreported) Mr. Abiona Adesunbo Oladejo vs. Olabisi Onabanjo University delivered on 14th April, 2014 by his Lordship I.F. Kola-Olalere, Judge of National Industrial Court, Ibadan Division, to the effect that;
“Once the other initiating processes like the Statement of Facts, List of Witnesses and List of Documents are properly signed by the Claimant or his Counsel; the none signing of the complaint by the litigant or his Counsel is usually excused since such signature is not exactly provided for in the format of the General Form of Complaint.”
According to Counsel, the acknowledgment by the Appellant of the Respondent’s resignation letter was on 7/7/2011 (Page 454 of the record). That fact admitted needs no other proof- Section 125 of the Evidence Act, 2011 andDin vs. African Newspapers (1990) 3 NWLR (Pt. 139) 392.
Counsel argued that the Respondent’s claim in the lower Court was for General damages in the sum of N120,000,000 (One Hundred and Twenty Million Naira) and that the deduction made from the Respondent’s entitlement was way more than what it ought to be. Learned Counsel stated, on the issues of unfair suspension and wrongful denial of promotion, that the principles are one and the same with those of unfair termination of employment and are species of unfair labour practice – Section 254C (1)(f) of the 1999 Constitution (as amended) and Section 122 (a) & (1) of the Evidence Act, 2011.
That the Court is empowered to grant damages to serve as a relief for unfair dismissal of the Respondent – Obih vs. Mbakwe (1984) LPELR – 2172 (SC). On the propriety or otherwise of the awards granted in favor of the Respondent in the lower Court, learned Counsel restated the same argument as in issue 2, it was averred that the award of three months’ salary to the Respondent by the lower Court was in line with the provision of the Appellant’s handbook especially in Clause 8.4.2 at paragraph 3 line 2 as reproduced at page 447 of the record.
Learned Counsel reiterated that the Court ought not to interfere with the judgment of the lower Court once same is not found to be perverse. The Court was urged to affirm the decision of the lower Court in respect of the said award. Learned Counsel cited the provision of Section 254C (1)(f) of the 1999 Constitution (as amended) and decisions in Industrial Cartons Ltd. vs. NUPAPPW (2006) 6 NLLR (Pt. 15) 258 andAmaechi vs. INEC (2008) LPELR – 446 (SC) 96, to submit that, even where no remedy was expressly prescribed, the Court is duty bound to improvise one.
In the response contained at paragraph 1.12 of the Reply Brief, Counsel for the Appellant took a swipe at the reliance placed on an unreported ruling of the lower Court in Suit No. NICN/IB/51/2015 – Mr Obiona Adesunbo Oladejo vs. Olabisi Onabanjo University (Supra) arguing that, in law and under the principle of stare decisis, such decision cannot bind this appellate Court- Ministry Of Works & Transport Adamawa State Yakubu (2013) 6 NWLR (Pt. 1351) 481 at 49 and Fatoki vs. Baruwa (2012) 14 NWLR (Pt. 1319) 1 at 15.
RESOLUTION OF THE APPEAL
The issue that calls for determination in my humble view is:-
“Whether the trial Court had the competence and jurisdiction to hear and determine the Claimant’s suit when the complaint that initiated the proceedings before the Court was neither signed by the Claimant nor her legal practitioner as required by the law”.
Order 4 Rule 4(3) of the Civil Procedure Rules of the National Industrial Court, 2007 provides:
4(3): “An originating process shall be signed by the claimant or his or her Legal Practitioner where the Claimant sues through a Legal Practitioner.”
The main grouse of the Appellant is that the complaint which originated the suit was not signed by the Respondent or his Counsel in violation of Order 4 Rule 4(4) of the Civil Procedure Rules of the lower Court. There is no doubt that a complaint as in this instance is an originating process and therefore falls under the provision of Order 4 Rule 4 of the Rules.It is a cardinal rule of interpretation of statute or rules that where the provisions are clear and unambiguous, the duty of the Court is to simply interpret the clear provisions by giving plain wordings their ordinary interpretation without more. See Abacha vs. Federal Republic of Nigeria (2014) 6 NWLR (Pt. 1402) 43, 92 and Action Congress vs. Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223, 249. Order 4 Rule 4, as set out above, is clear and unambiguous. It imposes a duty on a Claimant or his Counsel, on presenting any originating process for filing and sealing to have that originating process signed by the Claimant or his legal practitioner. The position of the Apex Court on the signing or authentication of originating processes must serve as the beacon for the interpretation of the rules. In the case of Okarika vs. Samuel (2013) 7 NWLR (Pt. 1352) 19, 43, Peter Odili, J.S.C., held that:
“The full Court of the Supreme Court held firmly and following in the footsteps of Okafor vs. Nweke (2007) 3 SCNJ 185, (2007) 10 NWLR (Pt. 1043) 521 that once the initiating process, be it writ of summons or notice of appeal is not signed or authenticated either by the litigating party or the legal practitioner on his behalf then that process is invalid and the jurisdiction of the Court ousted. The defect is taken as incurable. This Court has taken the same view as demonstrated in the following cases, to wit; Keystone Bank Ltd vs. J.O. Adebiyi & Sons (Nig) Ltd. (2015) 1 NWLR (Pt. 1439) 98, 111 and Sun Publishing Ltd vs. Leaders & Co. Ltd (2016) 7 NWLR (Pt. 1510) 1, 7.”
The complaint filed on 27th September, 2012 which is the initiating process is mandatorily required to be signed by the claimant or her legal practitioner- Order 4 Rule 4(4) of the National Industrial Court Rules, 2007. In the instant case, it was neither signed by the Claimant (Respondent herein) nor by her legal practitioner as required by law– Pages 1-2 of the Record of Appeal.
This Court cannot, in any event, ignore a situation in which the foundations of claim are based on a worthless “complaint” neither signed by the Claimant nor her legal practitioner duly enrolled at the Supreme Court of Nigeria. The case was a complete nonstarter rendering the entire proceedings null and void. Basically, an unsigned or irregularly signed originating process is worthless and incapable of hitting the ground running in legal proceedings. The complaint is incompetent in that it was not signed by the Claimant or her legal practitioner and is accordingly struck out. Being the initiating process, the statement of claim and all other processes that swivel on the helpless complaint are correspondingly affected by the same virus and consequently rendered incompetent. Even though the Claimant (Respondent herein) filed an amended complaint, (Pages 197 to 198 of the Record of Appeal), the amended complaint is also afflicted with the same virus as it was neither signed by the Claimant nor by her legal practitioner as required by law. On the whole, this Appeal is meritorious and is hereby allowed. The Judgment of the lower Court in Suit No. NICN/LA/497/2012 delivered on 1st February, 2016 is hereby set aside. No cost is awarded. Parties to bear their respective costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the leading Judgment delivered by my learned brother: Abdullahi Mahmud Bayero, J.C.A. I endorse, in toto, the reasoning and conclusion in it. I, too, allow the appeal in the manner decreed in the leading Judgment.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother, ABDULLAHI MAHMUD BAYERO, J.C.A., and I agree with my lord that the appeal has merit. Order 4 Rule 4(3) of the Civil Procedure Rules of the National Industrial Court is quite plain and unequivocal. It states that an originating process shall be signed by the Claimant or his or her legal practitioner where the claimant sues through a legal practitioner. The word “shall”, it is trite, a word of command and denotes an obligation and gives no room for discretion. It imposes a duty. see AMALGAMATED TRUSTEES LTD VS ASSOCIATED DISCOUNT HOUSE LTD (2007) LPELR-454 (SC). It is conceded that the word “shall” is construed sometimes, as merely permissive or directory. However, the use of the word depends, by and large, on the particular context in which it is used. See PATRICK ANIGALA OKPALA V THE DIRECTOR-GENERAL OF NATIONAL COMMISSION FOR MUSEUMS & MONUMENTS & ORS (1996) 4 NWLR (Part 444) 585. The context in which the word is used in Order 4 Rule 4 (3) of the Civil Procedure Rules of the National Industrial Court gives no room for thinking that the word “shall” is used in a permissive or directory sense. Therefore, the Originating process must be signed by the claimant or his or her legal practitioner where the claimant sues through a legal practitioner. Since that was not done by the Respondent or her Legal Practitioner, the case of the Respondent was erected on quick sand and not on a firm foundation. The lower Court lacked jurisdiction to entertain it. For this reason and the fuller reasons given by my lord, I find that the appeal has merit and is hereby allowed. The judgment of the lower Court is set aside.
Appearances:
Mathew Esonanjor with him Damilola Ojopagogo; John Osaro For Appellant(s)
J.O. Ogunwale with him L.O.Raheem For Respondent(s)