IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 23^RD FEBRUARY, 2026                                     SUIT NO: NICN/KN/24/2022

 

BETWEEN:

 

MALAM NASIR MUSA             ..………………………..     CLAIMANT

 

AND

 

JIGAWA SAVINGS AND LOANS LIMITED ………….     DEFENDANT

                                                   

REPRESENTATION:

 

BASHIR IBRAHIM WITH ABUBAKAR SHUIABU FOR THE CLAIMANT

MUNEER MUSTAPHA WITH HARUNA MAGASHI FOR THE DEFENDANT

 

JUDGMENT

 

The Claimant who was an employee of the Defendant filed a Complaint on the 6^th July, 2022 against the Defendant praying for the following reliefs:

 

1.      AN ORDER directing the Defendant to refund to the Claimant the sum of N4,606,052.15 as over deduction of Acting Allowance.

 

2.      AN ORDER directing the Defendant to refund to the Claimant the wrongfully deducted sum of N1,280,000.00 purportedly being unapproved difference in his monthly fuel allowance he benefitted as part of the privileges of the office of Managing Director/Chief Executive Officer.

 

3.      AN ORDER directing the Defendant to withdraw the false and defamatory statement it published to the said Trust Funds Pensions Limited that the Claimant had absconded from his employment.

 

4.      AN ORDER directing the Defendant to apologize to the Claimant for the false and defamatory statement it published to the said Trust Funds Pensions Limited to the effect that he had absconded from his employment.

 

5.      AN ORDER directing the Defendant to remit to the said Trust Fund Pensions Limited the unremitted accrued pensions it deducted from the Claimant's salaries of the months of February and March 2011, June 2015, April 2016, and November 2020 in the sum of N10,105,32, N10,105,32, N13,586.04,N14,944.64 and N18,083.00 respectively inclusive of its counter contribution the total of which is N66,824.32.

 

6.      AN ORDER directing the Defendant to pay the Claimant general damages in the sum of N20,000,000.00 for the false and defamatory statement it published to the said Trust Funds Pensions Limited.

 

7.      AN ORDER directing the Defendant to pay the Claimant N5,000,000.00 general damages for the inconvenience, damages and emotional distress he suffered as a result of the Defendant's refusal, failure and or negligence to remit to the said Trust Funds Pensions Limited the accrued pensions it deducted from is salaries for the moths of February and March 2011, June 2015, April 2016,and November 2020 in the sum of N10,105.32, N10,105.32, N13,586.04, N14,944.64 and N18,083.00 respectively inclusive of its counter contribution.

 

8.      AN ORDER of this Honourable Court awarding cost of this action in favour of the Claimant against the Defendant.

 

9.      AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.

 

By leave of court on the 12^th January, 2023, the Claimant filed a Memorandum of Appearance and Statement of Defence out of time.  The Claimant testified on 8^th March, 2023 and 17^th October, 2023. The case was adjourned to 13^th December, 2023 for cross examination when E. D. E. Isele, J was transferred. The case started denovo on the 19^th March, 2024 and adjourned to 25^th April, 2024 for hearing. The Claimant gave evidence-in-chief on that day and tendered 13 documents as Exhibits (CW1-CW13) and was cross examined on the 2^nd July, 2024. The Defendant opened its defence on 6^th February, 2025 by calling two witnesses. Abdullahi Mohammed Abdullahi, the General Manager (Legal Services) testified as DW1 and tendered four (4) Exhibits (DW1-1 to DW1-4) and was cross examined. Mohammed Umar, a retired staff of the Defendant also testified as DW2 on 6^th February, 2025 and was cross examined the same date and the case adjourned for adoption of final addresses.

 

On the 9^th April, 2025, a day slated for adoption, Counsel to the Claimant having observed that the Defendant raised the lack of jurisdiction on the ground that the Complaint itself was not signed, applied for the case to be struck out. On the other hand, Counsel for the Defendant argued that since issues have been joined the case should be dismissed instead. Thereafter, the court considered the stage of the proceedings and ordered the parties to file written addresses on the proper order to make under the circumstance and adjourned the case to 27^th May, 2025 for the adoption of the court ordered address beginning with the Claimant. Having filed and exchanged their addresses, the parties adopted same on the 27^th May, 2025 and the case adjourned for ruling. On the 8^th July, 2025, instead of ruling on the court ordered address, the court decided as a court of first instance, to take the issue of the proper order to make together with the substantive suit. This is in view of the realisation on the day of adoption that the parties have resolved to appeal the ruling either way it goes coupled with the fact it is better to have the Court of Appeal consider vexed issue and the substantive suit to save time. On the 13^th January, 2026, the Defendant adopted its final written address filed on the 28^th February, 2025 and the Reply on Points of Law filed on 14^th October, 2025. On his part, the Claimant adopted his final written address filed on the 7^th October, 2025 and the case adjourned to 23^rd February, 2026 for judgment.

 

SUBMISSION OF THE CLAIMANT ON THE COURT ORDERED ADDRESS

The Claimant’s court-ordered address is anchored on the narrow but fundamental question of the proper order a court should make where an originating process, specifically the Complaint, is discovered at the address stage to be incompetent for want of signature by a legal practitioner. The Claimant recounts that parties had fully joined issues, witnesses were called by both sides, and the matter had reached the stage of adoption of final written addresses when the Defendant raised, in its address, the issue of non-compliance with Order 3 Rule 10 (c) (i) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Upon the issue being raised, the Claimant candidly conceded the defect and agreed that the Complaint was incompetent, but contended that the proper consequential order was striking out, not dismissal. The Court, faced with the divergent positions of counsel, directed addresses on the proper order to make.

In urging the Court to strike out the suit, the Claimant submits that the incompetence of the Complaint goes to the jurisdiction of the Court, and that where a court lacks jurisdiction, it is precluded from considering the merits of the case. Any step taken on the merits in such circumstances would amount to a nullity. It is therefore settled law that a matter not determined on its merits can only be struck out and not dismissed. Reliance is placed heavily on the decision of the Supreme Court case of Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC), where the apex Court held that an originating process signed by a law firm, rather than a legal practitioner whose name is on the roll, is fundamentally defective and incompetent, and that the only proper order is one striking out the process and all proceedings founded on it. The Court emphasized that such proceedings, including appellate proceedings, amount to a nullity. The Claimant draws attention to the concurring opinion of Abba Aji, JSC, who underscored that an appeal founded on an incompetent originating process is itself incompetent and liable to be struck out.

The Claimant further reinforces this position by referring to decisions of the Court of Appeal, including Ibrahim v. State (2021) LPELR-53363 (CA) and Onamade v. APC & Ors (2022) LPELR-58719 (CA), both of which affirm that where processes are incompetent, the appropriate order is striking out. The same principle, it is argued, was reiterated by the Supreme Court in Dickson Ogunseinde Virya Farms Ltd v. Societe Generale Bank Ltd & Ors (2018) LPELR-43710 (SC), where a wrongly signed notice of appeal was struck out for incompetence, the Court holding that it could not be salvaged and could not warrant dismissal on the merits.

The Claimant also relies on M.W. & T.A.S. v. Yakubu (2013) ALL FWLR (Pt. 694) 23, where the Supreme Court held that proceedings conducted without jurisdiction are incompetent and must be set aside, with the suit before the trial court struck out. Similarly, in Buhari & Anor v. Adebayo & Ors (2014) LPELR-22521 (CA), the Court of Appeal upheld the striking out of a suit commenced with an unsigned writ of summons, applying the principle that one cannot place something on nothing, as famously stated in Macfoy v. UAC, and reaffirming the jurisdictional test in Madukolu v. Nkemdilim (1962) 1 All NLR 357.

Beyond the technical authorities, the Claimant appeals to considerations of justice and equity, submitting that the law does not intend to permanently shut out a litigant from ventilating his grievances merely because of the inadvertence or error of counsel in signing a process. In this regard, reliance is placed on F.B.N. Plc v. Maiwada (2013) ALL FWLR (Pt. 661) 1433, where the Supreme Court, per Fabiyi, JSC, explained that striking out an incompetent process, rather than dismissing the action, strikes a balance between enforcing due process and preserving the litigant’s right of access to court. The Court held that such an order leaves the litigant at liberty to re-approach the court with a properly initiated process, thereby promoting good practice within the legal profession without occasioning injustice.

On the totality of these submissions and authorities, the Claimant concludes that since the defect complained of goes to jurisdiction and the matter has not been determined on the merits, the only legally permissible and just order open to the Court is one striking out the suit. The Claimant therefore humbly urges the Court to so hold.

SUBMISSION OF THE DEFENDANT ON THE COURT ORDERED ADDRESS

The Defendant’s court-ordered address is directed at persuading the Court that, having regard to the peculiar facts of this case and the clear provisions of the Rules of this Court, the proper order to make is one of dismissal and not striking out. The Defendant submits that the Claimant’s insistence on striking out the suit, notwithstanding the stage at which the defect was raised and conceded, is misconceived and unsupported by law. It is contended that the authorities relied upon by the Claimant are clearly distinguishable, as they largely concern situations where proceedings were terminated at inception or before the full ventilation of the merits.

The Defendant emphasizes that by the time the Claimant conceded the incompetence of the Complaint, parties had long joined issues, pleadings had been settled, and a full plenary trial had been concluded with oral evidence led by both sides. It is against this factual backdrop that the Defendant anchors its argument on Order 61 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, which expressly provides that where a claimant withdraws or discontinues a suit after the defendant has joined issues by filing a defence, the suit “shall be dismissed” by the Court. The Defendant urges the Court to give this provision its plain, ordinary, and literal meaning, contending that the language of the rule is clear, unambiguous, and leaves no room for discretion.

In support of the principle of literal interpretation, the Defendant relies on a long line of Supreme Court authorities, including Nobis-Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197, Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165, Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591 and Registered Trustees, A.O.N. v. NAMA (2014) 8 NWLR (Pt. 1408) 1. Particular reliance is placed on Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) 17 NWLR (Pt. 743) 706, where the Supreme Court, per Kutigi, JSC, reaffirmed the cardinal principle that where statutory provisions are clear and unambiguous, courts must give effect to them without resorting to extraneous aids.

The Defendant further argues that the use of the word “shall” in Order 61 Rule 7 is mandatory and admits of no discretion. On the settled meaning of “shall” in statutory interpretation, reliance is placed on Ogidi v. State (2005) All FWLR (Pt. 251) 202, where the Supreme Court, per Oguntade, JSC, held that the word connotes a command and imposes a compulsory obligation, leaving no room for judicial choice or flexibility. The Defendant submits that once the factual conditions stipulated in the rule are satisfied, namely that issues have been joined and the claimant seeks to withdraw thereafter, the Court is bound to dismiss the suit.

The Defendant reinforces this position by contending that rules of court are not ornamental or directory, but have the force of law and must be strictly complied with. In this regard, reliance is placed on Ifeanyichukwu (T.I.V.) Ltd v. O.C.B. Ltd (2015) 17 NWLR (Pt. 1487) 1, Williams v. Hope Rising Voluntary Funds Society (1982) 12 SC 145, Jimoh Ojugbele v. Lamidi (1999) 10 NWLR (Pt. 621) 167, Folaranmi v. Abraham (2004) 10 NWLR (Pt. 881) 434 and Afribank (Nig.) Plc v. Akwaru (2006) 5 NWLR (Pt. 974) 619. Particular emphasis is placed on G.M.O.N. & S. Co. Ltd v. Akputa (2010) 9 NWLR (Pt. 1200) 443, where the Supreme Court described rules of court as subsidiary legislation with the force of law, binding on both the court and litigants, unless discretion is expressly conferred.

Applying these principles, the Defendant submits that once the Claimant effectively sought to withdraw or discontinue his suit at the address stage, the Court is empowered and indeed compelled by its Rules to dismiss the suit. Authorities such as Stowe v. Benstowe (2012) 1 SC (Pt. II) 86, Nwankwo v. Yar’Adua (2010) 3–5 SC (Pt. III) 1, and C.C.B. (Nig.) Plc v. Attorney-General, Anambra State (1992) 10 SCNJ 137 are cited to support the proposition that courts may dismiss actions withdrawn after issues have been joined and proceedings substantially concluded.

The Defendant places strong reliance on Eronini & Ors v. Iheuko (1989) 1 NSCC (Vol. 1) 503, contending that it is directly on point. In that case, the Supreme Court held that where a plaintiff applies to discontinue an action after trial has commenced and evidence has been taken, the proper order, in the interest of justice, is dismissal rather than striking out. The apex Court, per Obaseki, JSC, set aside concurrent decisions striking out the suit and substituted an order of dismissal, emphasizing that discretion must be exercised judicially and in accordance with justice. The Defendant urges this Court to be guided by that decision and to dismiss the present suit accordingly.

In conclusion, the Defendant submits that given the advanced stage of the proceedings, the clear and mandatory provisions of Order 61 Rule 7 of the NICN Rules, and the binding authorities of the Supreme Court, the only proper order open to the Court is one dismissing the Claimant’s suit, with substantial costs in favour of the Defendant.

THE CASE OF THE CLAIMANT

 The Claimant’s case is that he was a long-serving employee of the Defendant, Jigawa Savings and Loans Limited, a financial institution duly registered under the Companies and Allied Matters Act and engaged in the business of primary mortgage services. He was employed by the Defendant in September 2002 as a Manager and served the institution diligently for about eighteen years until September 2020. Over the course of his employment, the Claimant rose steadily through the ranks by virtue of promotions earned on merit, culminating in his appointment as General Manager, which position was immediately subordinate to that of the Managing Director/Chief Executive Officer.

On 30^th September, 2019, the Defendant further appointed the Claimant as Acting Managing Director/Chief Executive Officer for a period of ten months. In that capacity, the Claimant lawfully performed the duties and responsibilities of the substantive office and, in accordance with Chapter 5.05 (c) (i) of the Defendant’s Conditions of Service, he was entitled to and indeed received a 100% acting allowance, being the full salary attached to the office he was acting. During this period, the Defendant deducted pension contributions from the Claimant’s salary based on the remuneration he earned as Acting Managing Director/Chief Executive Officer and remitted same, together with its statutory counter-contributions, to Trust Funds Pensions Limited, the Claimant’s duly registered pension administrator.

Upon the expiration of the acting appointment, the Defendant relieved the Claimant of the position of Acting Managing Director/Chief Executive Officer on 28^th July, 2020 and reverted him to his substantive post of General Manager. Consequent upon this reversion, the Claimant’s monthly pension contributions were thereafter calculated based on his salary as General Manager rather than that of the Managing Director/Chief Executive Officer. In a letter dated 17^th September, 2021 addressed to Trust Funds Pensions Limited, the Defendant itself acknowledged and attempted to explain the discrepancy in the Claimant’s pension contributions by reference to his period of acting appointment and subsequent reversion.

Notwithstanding the foregoing, the Defendant, by a letter dated 22^nd December, 2020, wrongfully and inexplicably terminated the Claimant’s employment without notice and without any justifiable cause. Although the Defendant promised to pay the Claimant his full terminal benefits, it failed to do so and instead grossly underpaid him. The Claimant contends that he was short-changed in the total sum of ?6,571,614.24 arising from several wrongful deductions and omissions, including the unlawful deduction of his acting allowance in the sum of ?4,606,052.15, over-deduction in respect of an official vehicle in the sum of ?145,833.31, omission of his December 2020 salary in the sum of ?358,043.83, and underpayment of his 2020 staff bonus in the sum of ?149,184.95.

In the course of processing the Claimant’s retirement benefits, Trust Funds Pensions Limited discovered that the Defendant had failed to remit the Claimant’s accrued pension contributions, inclusive of its counter-contributions, for several months, namely February and March 2011, June 2015, April 2016, and November 2020, in the respective sums of ?10,105.32, ?10,105.32, ?13,586.04, ?14,944.64, and ?18,083.00, amounting in total to ?66,824.32. The pension administrator consequently sought confirmation from the Defendant regarding these outstanding remittances.

Rather than provide an honest explanation, the Defendant deliberately misrepresented facts by informing Trust Funds Pensions Limited that the Claimant had absconded from duty up to the time his appointment was terminated and that he was not paid his November and December 2020 salaries, thereby seeking to justify its failure to remit the pension contributions for those months. The Claimant asserts that this allegation was entirely false, malicious, and fabricated, as he did not abscond from duty, his termination was not predicated on any misconduct, and he was in fact paid his November 2020 salary from which pension deductions were made but wrongfully withheld from remittance to his pension administrator.

As a direct consequence of this false publication, Trust Funds Pensions Limited delayed the processing and payment of the Claimant’s pension benefits and referred the matter to the National Pension Commission for clearance. The Commission, relying on the serious allegations communicated by the Defendant, declined clearance, thereby depriving the Claimant of access to his retirement savings. The Claimant contends that this development caused him severe financial hardship, emotional distress, and deprived him of the fruits of his life-long service and savings.

The Claimant further maintains that the Defendant’s false assertion that he absconded from duty, communicated to his pension administrator without lawful justification, exposed him to embarrassment, humiliation and damage to his reputation and character. He also avers that the Defendant persistently breached its statutory and contractual obligation to remit all pension deductions made from his salary, particularly in respect of the identified months for which the total outstanding sum remains ?66,824.32, thereby compounding his losses and suffering.

Despite repeated demands and several letters written by the Claimant requesting settlement of his outstanding entitlements and a retraction of the defamatory statements made against him, the Defendant failed to fully remedy its defaults. The Claimant eventually instructed his solicitor to issue a formal letter of demand, calling for payment of his outstanding benefits, withdrawal of the defamatory publication made to Trust Funds Pensions Limited, and an apology to avert legal action. In response, the Defendant only partially conceded to the demands and expressly refused to refund the sum of ?4,606,052.15 unlawfully deducted from the Claimant’s acting allowance, while also failing or refusing to address the issue of the defamatory statement made against him.

The Claimant further discovered that the Defendant wrongfully deducted an additional sum of ?1,280,000.00 from his terminal benefits under the guise of an unapproved difference in fuel allowance allegedly enjoyed during his tenure as Acting Managing Director/Chief Executive Officer, notwithstanding that such allowance formed part of the approved privileges of that office. The Claimant therefore maintains that the Defendant’s actions were wrongful, malicious, and in breach of its contractual, statutory, and fiduciary obligations, and that he has suffered substantial financial loss, reputational damage, and emotional distress as a result.

THE CASE OF THE DEFENDANT

The Defendant’s case is a total denial of liability in respect of the material allegations made by the Claimant, save for those facts expressly admitted. The Defendant maintains that, except as specifically acknowledged, every allegation contained in the Claimant’s Statement of Facts is untrue and is accordingly traversed in its entirety. While the Defendant admits the basic facts relating to the Claimant’s employment, including his engagement, the nature of the Defendant as a financial institution, and the Claimant’s progression within the organisation up to his appointment as Acting Managing Director/Chief Executive Officer, it firmly disputes the substance of the Claimant’s claims regarding entitlements, benefits, and alleged wrongful conduct.

In particular, the Defendant denies that the Claimant ever lawfully enjoyed or was entitled to a 100% acting allowance equivalent to the full salary of a substantive Managing Director/Chief Executive Officer. The Defendant’s position is that such an allowance is only payable upon express approval, and no such approval was ever granted in favour of the Claimant. According to the Defendant, any payment of the full Managing Director/Chief Executive Officer’s salary to the Claimant while he was merely acting in that capacity was irregular, unauthorized, and contrary to the Defendant’s internal regulations.

The Defendant further contends that the remittance of pension contributions to Trust Funds Pensions Limited based on the salary of the Managing Director/Chief Executive Officer was not a reflection of any lawful entitlement of the Claimant, but rather a consequence of the Claimant’s own directive that he be paid the full salary of that office despite being in an acting position. It is the Defendant’s case that the Claimant compelled the Head of Finance to effect such payments, and that the subsequent remittance of pension contributions on that basis was therefore tainted with illegality. Upon the Claimant’s removal from the acting position and his reversion to the post of General Manager, the Defendant asserts that the reduction of his salary and pension contributions to the appropriate level was justified, lawful, and consistent with his substantive rank, while the earlier remittances based on the Managing Director/Chief Executive Officer’s salary were improper.

On the issue of termination, the Defendant denies that the Claimant’s appointment was wrongfully or inexplicably terminated. Rather, it avers that the termination of the Claimant’s appointment as General Manager was necessitated by his willful refusal to return to his duty post after being relieved of the position of Acting Managing Director/Chief Executive Officer by the Board of the Defendant. The Defendant maintains that it did not promise to pay the Claimant his “full” benefits as alleged, but only such benefits as he lawfully deserved in accordance with its policies and applicable regulations.

With respect to the alleged underpayment of terminal benefits, the Defendant categorically denies owing the Claimant the sum of ?4,606,052.15 or any part thereof in respect of acting allowance. It asserts that the said sum was never an entitlement of the Claimant, being a benefit reserved strictly for a substantive Managing Director/Chief Executive Officer. The Defendant explains that the amount in question represented unauthorized payments earlier compelled by the Claimant and was therefore rightfully deducted during the processing of his retirement benefits to correct the anomaly. The Defendant also contends that the Claimant was duly paid all other sums allegedly outstanding, including amounts relating to official car deductions, December 2020 salary, and the 2020 staff bonus, totalling ?1,011,105.92. According to the Defendant, these payments were made by cheque to the Claimant’s solicitors’ account with Jaiz Bank Plc, and documentary evidence of such payment has been pleaded and will be relied upon at trial.

In relation to the alleged non-remittance of pension contributions, the Defendant maintains that it duly remitted the Claimant’s accrued pension contributions for the months of June 2015 and April 2016. It avers that the relevant cheques, deposit slips, and schedules of contributors, which include the Claimant’s name, are available and shall be relied upon in proof of this assertion. The Defendant thus denies any outstanding liability in respect of those months.

The Defendant also emphatically denies all allegations of falsehood, fabrication, defamation, embarrassment, or interference with the processing of the Claimant’s pension benefits. It asserts that it neither ridiculed nor diminished the Claimant’s reputation in the eyes of Trust Funds Pensions Limited, nor did it do anything to delay or obstruct the processing of his benefits. On the contrary, the Defendant avers that it provided all necessary and accurate information concerning the Claimant as requested by Trust Funds Pensions Limited in the course of processing his benefits, including by a letter dated 17^th  September, 2021, which it pleads and intends to rely upon.

In response to the Claimant’s assertion that further deductions were wrongfully made from his benefits or that demands made through his solicitors were ignored, the Defendant maintains that it has paid all sums properly due to the Claimant through his legal representatives and that no amount whatsoever was unlawfully deducted from his entitlements. The Defendant therefore concludes that the Claimant’s suit is unfounded, speculative and lacking in merit. Consequently, it urges the Court to dismiss the Claimant’s claims in their entirety and to award substantial costs in the sum of ?2,000,000.00 against the Claimant for instituting what it characterizes as a frivolous and vexatious action.

SUBMISSION OF THE DEFENDANT

The Defendant’s submissions on the issues for determination were anchored on the twin pillars of jurisdictional incompetence and substantive failure of proof, with a strong reliance on established statutory provisions and a formidable array of judicial authorities. On the first issue, the Defendant contended that the Claimant’s Complaint and the entire suit were incurably incompetent and liable to be struck out in limine. It was argued that jurisdiction is fundamental and constitutes the lifeblood of adjudication, such that once a court lacks jurisdiction, any proceedings conducted are a nullity irrespective of their apparent merit. In this regard, the Defendant relied heavily on the classic exposition of jurisdictional competence in Madukolu v. Nkemdilim (1962) 2 SCNLR 341, as restated in Chief John Oyegun v. Chief Francis A.A. Nzeribe (2010) All FWLR (Pt. 516) 425 and FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147, to submit that a court is only competent where the action is initiated by due process of law and upon fulfilment of all conditions precedent.

Applying these principles, the Defendant submitted that the Claimant’s Complaint, being the main originating process, was never signed either by the Claimant or by a legal practitioner known to law, contrary to the mandatory provisions of Order 3 Rule 10 (c) (i) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. It was emphasized that the signing of frontloaded processes cannot cure the fundamental defect of an unsigned originating process. Relying on authorities such as Akinpelu v. Ebunola (2008) 4 SCNJ 220, Iwuoha v. N.P.S. (2003) 5 SCM 104, Leaders & Co. Ltd v. Bamaiyi (2010) All FWLR (Pt. 12) 55, Ogidi v. State (2005) 1 SCM 159, Olabode v. Kila (2010) 13 WRN 73, INEC v. Oshiomhole (2008) 48 WRN 24, Auman Nig. Ltd v. Leventis Motors Nig. Ltd (1990) 5 NWLR (Pt. 151) 458 and Nwancho v. Elem (2004) All FWLR (Pt. 225) 93, the Defendant argued that an unsigned document is no document in the eyes of the law, being worthless, void and incapable of conferring any legal rights.

The Defendant further invoked the provisions of sections 2 (1), 7 (1), 8, 23 (1) and 24 of the Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria 2004, to submit that only a legal practitioner whose name appears on the roll can validly sign court processes. On this footing, reliance was placed on Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, Bello Ogundele v. Agiri (2010) All FWLR (Pt. 507) 1, Oketade v. Adewunmi (2010) All FWLR (Pt. 526) 511, SBL Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) 317, FBN v. Maiwada (2013) All FWLR (Pt. 661) 1433, D.O.V.F. Ltd v. SGB Ltd (2018) LPELR-43710 (SC), MW & TAS v. Yakubu (2013) All FWLR (Pt. 694) 23 and Buhari v. Adebayo (2014) LPELR-22521 (CA), to reinforce the submission that non-compliance with the requirement of signature is a matter of substantive law, not a mere procedural irregularity, and that such a defect cannot be cured by amendment. The Defendant also relied on the recent decision of the Supreme Court in State v. Gideon (2025) 1 NWLR (Pt. 1973) 373, where it was emphatically held that an unsigned originating process lacks any efficacy in law and is incurably bad.

Beyond the issue of signature, the Defendant submitted that the Claimant’s suit disclosed no reasonable cause of action. It was argued that the Claimant’s entire case was predicated on an alleged entitlement to the remuneration and benefits of a substantive Managing Director/Chief Executive Officer, whereas the documentary evidence tendered by the Claimant himself showed that he was at best appointed as an Acting MD/CEO on a temporary basis. Reference was made to the Claimant’s letter of appointment, his promotion to General Manager, the internal memo appointing him in an acting capacity, and the Defendant’s Conditions of Service, particularly the provision that acting appointments are merely to fill temporarily vacant positions and are not intended as a means of promotion. On this basis, the Defendant submitted that the Claimant was never appointed or confirmed as a substantive MD/CEO and therefore had no legal right to claim the salary, allowances or pension contributions of that office.

In defining cause of action, the Defendant relied on Anukwu v. Eze (2012) 11 NWLR (Pt. 1310) 50, Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446, Fadare v. A.G. Oyo State (1982) 4 SC 1, A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 and other authorities, to submit that a cause of action consists of a wrongful act of the defendant and the resultant damage. Applying this test, it was contended that the Claimant failed to disclose any wrongful act committed by the Defendant, since he was paid all entitlements due to him as a General Manager and had no enforceable right as a substantive MD/CEO. The Defendant argued that where no cause of action exists, the court is divested of jurisdiction, relying on Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt. 1154) 50, SPDC v. X.M. Fed Ltd (2006) 16 NWLR (Pt. 1004) 189, FRIN v. Gold (2007) 11 NWLR (Pt. 1044) 1, Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) 207 and Abubakar v. Falola (1997) 11 NWLR (Pt. 530) 638.

Closely connected to the absence of cause of action, the Defendant submitted that the Claimant lacked locus standi to institute the action, having failed to demonstrate any legal interest in the subject matter of the suit. It was argued that locus standi is a threshold issue which goes to jurisdiction, and that a plaintiff must show sufficient interest and an infringement or threat of infringement of a legal right. In support, reliance was placed on A.G. Lagos State v. Eko Hotels Ltd (2006) 9 SCNJ 104, Fawehinmi v. President FRN (2007) 9 NWLR (Pt. 1054) 275, Ojukwu v. Ojukwu (2008) 12 SC (Pt. III) 1, A.G. Akwa Ibom v. Essien (2004) 7 NWLR (Pt. 872) 288, Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 474 and Arowolo v. Akaiyeyo (2012) 4 NWLR 286. The Defendant maintained that since the Claimant was never the substantive MD/CEO, he had no standing to sue on that basis, and the inevitable consequence was the striking out of the suit.

Flowing from these defects, the Defendant argued that the Claimant’s action constituted an abuse of court process, being incompetent, academic, hypothetical and speculative. The Defendant invoked the celebrated dictum in Macfoy v. UAC (1962) 3 All ER 1169 and Shelim v. Gobang (2009) 37 WRN 32, to submit that one cannot put something on nothing and expect it to stand. Authorities such as Haladu v. Fanta (2021) LPELR-53476 (CA), Plateau State v. A.G. Federation (2006) 3 NWLR (Pt. 967) 346, A.G. Anambra State v. A.G. Federation (2005) 9 NWLR (Pt. 931) 572, Ikpekhia v. FRN (2015) All FWLR (Pt. 771) 1597, O.S.S.I.E.C. v. N.C.P. (2013) 9 NWLR (Pt. 1360) 451 and Osun State v. N.C.P. (2013) 3 SCNJ 41 were relied upon to urge the court to terminate the proceedings in the exercise of its inherent powers to prevent abuse.

On the second issue, assuming without conceding that the suit was competent, the Defendant submitted that the Claimant failed woefully to prove his case on a balance of probabilities. In particular, the claim for defamation of character was said to be unsubstantiated, as the Claimant failed to plead and prove the essential ingredients of defamation, namely publication of defamatory words, falsity, reference to the Claimant and damage to reputation. Authorities such as Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, Offoboche v. Ogoja LGA (2001) LPELR-2265 (SC), Guardian Newspapers Ltd v. Ajeh (2011) LPELR-1343 (SC), Sun Publishing Ltd v. Dumba (2020) 2 NWLR (Pt. 1708) 325 and Adeosun v. Afolabi (2004) All FWLR (Pt. 227) 590 were cited to submit that loss of reputation, not mere allegation, must be proved. The Defendant further argued that no board resolution or valid instrument appointing or confirming the Claimant as MD/CEO was produced, contrary to corporate law principles under the Companies and Allied Matters Act, as explained in Asaboro Ltd v. WN Finance Corp (1974) NCLR 266, ACB Plc v. Haston (Nig) Ltd (1997) 8 NWLR (Pt. 515) 110 and Odutola Holdings Ltd v. Ladejobi (2006) LPELR-2260 (SC).

In conclusion, the Defendant urged the court to resolve both issues in its favour, hold that the suit was incompetent, devoid of cause of action, lacking in locus standi, constituting an abuse of court process and, in any event, unproven on the merits, and accordingly strike out or dismiss the Claimant’s action in its entirety.

SUBMISSION OF THE CLAIMANT

The Claimant’s submissions are anchored on the two issues formulated by the Defendant, namely the alleged incompetence of the Complaint and whether, on the balance of probabilities, the Claimant has proved his entitlement to the reliefs sought. On the first issue, the Claimant contends that the Defendant’s objection to the competence of the Complaint is fundamentally flawed both procedurally and substantively. It is argued that although the Defendant initially conceded that the appropriate order, if any incompetence were established, would be one of striking out, it later somersaulted and insisted on dismissal, an approach which necessitated the court’s directive for written addresses. The Claimant submits that before delving into the merit of the objection, the court must determine whether the Defendant followed the proper procedure in challenging the Complaint, whether the alleged failure to sign the Complaint is fatal in the circumstances, and what order is appropriate if any defect is found.

Relying on Order 3 Rule 21 (2) of the National Industrial Court Rules, 2017, the Claimant submits that a challenge based on non-compliance with Order 3 Rule 10 must be brought by a motion on notice within seven working days of service of the originating process. The Defendant’s failure to invoke this prescribed procedure is said to be fatal to its objection. Heavy reliance is placed on the decision of the Supreme Court in The Administrator and Executor of the Estate of Abacha v. Eke-Spiff & Ors (2009) LPELR-3152(SC), where the apex court reiterated that challenges to the competence or validity of an originating process must be raised at the earliest opportunity by appropriate procedural steps. The Claimant further invokes the settled principle that where a statute or rules prescribe a particular mode of doing an act, that mode must be strictly followed, citing Ajayi v. SEC (2023) LPELR-59729(SC), as well as Jack v. University of Agriculture, Makurdi and other authorities. It is submitted that by filing processes, joining issues, calling witnesses and participating fully in the trial, the Defendant waived any alleged procedural defect, in line with the decision in R. Lauwers Import-Export v. Jozebson Industries Co. Ltd (1988) LPELR-2934 (SC).

Assuming, without conceding, that the objection was properly raised, the Claimant argues that the failure of counsel to sign the Complaint is not fatal. The Complaint, being an originating process issued and signed by the Registrar, is valid in substance, and no miscarriage of justice was occasioned. The Defendant, having responded to the Complaint, cannot plausibly claim to have been misled. The Claimant relies on Order 5 Rule 1 of the National Industrial Court Rules, which permits the court to treat non-compliance with its rules as a mere irregularity. The submissions emphasize the modern judicial attitude against undue technicality, drawing extensively from Supreme Court authorities such as Fabby & Ors v. Fode Drilling (Nig.) Ltd (2025) LPELR-81161 (SC), Eze v. FRN (2017) LPELR-42097 (SC) and U.T.C. (Nig.) Ltd v. Pamotei (1989) LPELR-3276 (SC), all of which affirm that rules of court are aids to justice and not masters of the court. The Claimant further distinguishes between breaches of substantive law and breaches of procedural rules, relying on Nyesom v. Peterside & Ors (2016) LPELR-40036 (SC) and urges the court, as a specialised labour court, to apply equity and fairness pursuant to Order 5 Rules 5 and 6 of its Rules. The equitable maxims that equity looks to intent rather than form and imputes an intention to fulfil an obligation are invoked, with reliance on Ogbeide v. Osifo (2006) LPELR-6217 (CA), affirmed by the Supreme Court in Tonimas (Nig.) Ltd v. Chigbu (2020) LPELR-50633 (SC).

On the issue of locus standi and cause of action, the Claimant submits that his appointment as Acting Managing Director was not a test of suitability but a functional appointment following his substantive position as General Manager, and that he performed the role satisfactorily for ten months. The argument that he should perform the full duties of Managing Director without commensurate remuneration is described as inhuman and contrary to the Defendant’s Conditions of Service, particularly clause 5.05, which provides for full acting allowance where an officer acts in a higher grade. The Claimant rejects the allegation that he forced the payment of Managing Director’s remuneration, arguing that the evidence of DW2 is unsupported, unreported and contradicted by the Defendant’s own conduct. In any event, it is submitted that the issue is immaterial since the Conditions of Service entitle him to such remuneration. The Claimant places strong reliance on Abayomi v. Saap-Tech Nig. Ltd (2018) LPELR-50254 (CA) and Longe v. FBN Plc (2010) 6 NWLR (Pt. 1189) 1, where the courts affirmed that a managing director, as the directing mind of a company, cannot reasonably be expected to earn the remuneration of a much lower office. Reference is also made to the provisions of section 268 of CAMA on remuneration and quantum meruit.

On the second issue, the Claimant submits that civil cases are determined on the balance of probabilities and preponderance of evidence, relying on sections 131–134 of the Evidence Act, 2011 and Adeleke & Ors v. Iyanda & Ors (2001) LPELR-114 (SC). It is argued that the Claimant adduced credible and sufficient evidence establishing his employment, the wrongful termination of his appointment, unlawful deductions from his terminal benefits, failure to remit pension contributions, and defamatory publication that he absconded from duty. The Defendant is said to have failed to rebut this evidence, and the unchallenged aspects of the Claimant’s case are deemed admitted, in line with authorities such as Adedayo v. Christine & Ors (2019) LPELR-48871 (CA).

On defamation, the Claimant accepts the six essential elements outlined by the Defendant and submits that exhibits CW8 and CW9 conclusively establish them. The Defendant’s letter to Trust Funds Pensions Limited alleging that the Claimant absconded from duty is said to be false, malicious and defamatory, particularly as DW1 admitted under cross-examination that the allegation was never investigated, contrary to the Defendant’s Conditions of Service which mandate investigation, fair hearing and a right of appeal. The Claimant contends that libel is actionable per se, and that the defamatory publication directly caused the delay and denial of his pension benefits, subjecting him to embarrassment and financial hardship. Reliance is placed on authorities such as Ujam v. Onyia (2013) LPELR-22581(CA), Emeagwara v. Star Printing & Publishing Co. Ltd (2000) LPELR-1122 (SC), Society BIC S.A. v. Charzin Industries Ltd (2014) LPELR-22256 (SC) and Dumbo v. Idugboe (1983) LPELR-964 (SC), which underscore the right to reputation and the strict burden on a defendant who pleads justification.

The Claimant further argues that the Defendant’s attempt to disown the appointment of the Claimant as Acting Managing Director is untenable in light of documentary evidence showing board involvement and subsequent conduct, and that the Defendant is estopped by its actions from denying the appointment, relying on section 169 of the Evidence Act and NNPC v. Owners of M.T. Venturer (2025) LPELR-80666 (SC). In conclusion, the Claimant urges the court to resolve both issues in his favour, affirm the competence of the Complaint, hold that he has proved his case on the balance of probabilities, and grant all the reliefs sought, including substantial damages and costs, in accordance with the maxim ubi jus ibi remedium and authorities such as Lau v. PDP (2017) LPELR-42800 (SC), Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and other tort and labour jurisprudence emphasising compensation, deterrence and substantial justice.

REPLY ON POINTS OF LAW

The Defendant’s Reply on Points of Law is directed at rebutting what it describes as new and erroneous legal issues introduced by the Claimant in his Final Written Address, with particular emphasis on jurisdiction, the competence of the originating process, the alleged existence of a cause of action and locus standi and the claim of defamation. The Defendant maintains that the Claimant’s submissions are founded on a fundamental misconception of settled principles of law and urges the court to discountenance them entirely.

On the issue of the alleged incompetence of the Claimant’s originating process, the Defendant contends that the Claimant wrongly argued that the jurisdictional objection could not be raised at the address stage by reason of Order 3 Rules 10 and 21 (2) of the National Industrial Court Rules, 2017. According to the Defendant, this argument is a clear distortion of the law, as jurisdiction is so fundamental that it can be raised at any stage of proceedings, in any manner, even viva voce, and even for the first time on appeal up to the Supreme Court. It is submitted that rules of court cannot regulate, restrict or dictate when and how issues of jurisdiction may be raised, because compliance with procedural rules only becomes relevant after the court is satisfied that it has jurisdiction to entertain the matter. In support of this position, the Defendant relies heavily on Supreme Court authorities such as Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251 at 279 and Oseni Omomeji & Ors v. James Olagunju Kolawole & Ors (2008) 14 NWLR (Pt. 1106) 180, where it was emphatically held that jurisdiction may be raised at any stage of proceedings. Further reliance is placed on Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675, in which Belgore JSC described jurisdiction as the lifeline of adjudication and held that a trial conducted without jurisdiction is a nullity, thus justifying its being raised at any time in the interest of justice. The Defendant also cites Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 70, where the Supreme Court held that objections on jurisdiction are not ordinary points of law subject to procedural rules and that such rules cannot dictate the timing or manner of raising jurisdictional challenges.

Building on these authorities, the Defendant urges the court to hold that raising the jurisdictional issue at the address stage was proper and lawful. The Defendant further argues that the Claimant’s attempt to characterise the failure to sign the originating process as a mere irregularity curable under Order 5 Rule 1 of the National Industrial Court Rules is misconceived. It is submitted that the defect complained of goes beyond a breach of rules of court and amounts to a violation of mandatory statutory provisions of the Legal Practitioners Act, particularly sections 2 (1), 7 (1), 8, 23 (1) and 24 thereof. According to the Defendant, compliance with these provisions is substantive and mandatory, cannot be waived, and cannot be cured by the discretionary provisions of the rules of court. In this regard, the Defendant places strong reliance on the decision of the Supreme Court in D.O.V.F. Ltd v. S.G.B. Ltd & Ors (2018) LPELR-43710 (SC), where Peter-Odili, JSC reaffirmed that an originating process not signed by a legal practitioner, where required by law, is incompetent and incapable of amendment, as an amendment cannot stand on a null foundation. The Defendant also relies on FBN v. Maiwada (2013) ALL FWLR (Pt. 661) 1433, where the Supreme Court held that where the Legal Practitioners Act is in issue, rules of court must give way, being subsidiary legislation, and that failure to comply with the Act renders the process incompetent in line with the principle in Madukolu v. Nkemdilim (1962) 2 SCNLR 341. To further counter the Claimant’s argument on technicality, the Defendant cites M.W. & T.A.S. v. Yakubu (2013) ALL FWLR (Pt. 694) 23, where the Supreme Court held that an unsigned originating process is not a mere technical defect but a fundamental flaw that strikes at the root of the judicial process.

On the alleged absence of a cause of action, the Defendant submits that the Claimant’s reliance on the Defendant’s Conditions of Service, particularly Clause 5.05, is misplaced. It is argued that Clause 4.04(c) of the Conditions of Service specifically governs acting appointments, while Clause 5.05 relates strictly to remuneration. Applying the settled principle that specific provisions override general ones, the Defendant contends that working in an acting capacity does not create enforceable rights beyond what is expressly provided in the contract. Since the Conditions of Service constitute the binding agreement between the parties, and since the Claimant was never substantively promoted to the position of Managing Director, no valid cause of action arose. The Defendant further argues that the Claimant’s reliance on Abayomi v. Saap-Tech Nig. Ltd (2018) LPELR-50254 (CA) is misconceived, as the facts of that case involved a substantive promotion to Managing Director, which is clearly distinguishable from the present case where the Claimant merely acted in that capacity. Consequently, the Defendant urges the court to hold that the suit discloses no reasonable cause of action.

Closely allied to this is the Defendant’s contention that the Claimant lacks locus standi to institute the action, having failed to properly anchor his claims on any enforceable right under the Conditions of Service. The Defendant submits that the Claimant did not advance any coherent legal argument establishing locus standi and urges the court to resolve this issue in its favour.

On the second issue, the Defendant challenges the Claimant’s assertion that he proved the tort of defamation. It is submitted that the Claimant failed to establish the essential elements of defamation as pleaded and that mere arguments in counsel’s address cannot substitute for credible evidence. The Defendant relies on well-established authorities such as Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225, Archibong v. Edak (2006) 7 NWLR (Pt. 980) 485, Anthony v. Governor of Lagos State (2003) 10 NWLR (Pt. 828) 288 and Akibu v. Race Auto Supply Co. (2000) 14 NWLR (Pt. 686) 190, all of which affirm that addresses of counsel, no matter how brilliant, cannot take the place of evidence. The Defendant also maintains that the Claimant failed to prove any entitlement to the salaries, allowances or benefits of a substantive Managing Director, having neither been appointed nor confirmed in that capacity.

In its concluding submissions, the Defendant argues that the cases relied upon by the Claimant are largely irrelevant, as they neither relate to employment contracts nor to defamation, and that courts are bound only by the ratio decidendi of cases decided on similar facts. In this regard, the Defendant relies on Uwakop v. U.B.A. Plc (2013) ALL FWLR (Pt. 690) 1316, Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 87 and Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55, where the appellate courts emphasised that judicial precedents must be applied with due regard to factual similarity. On the whole, the Defendant urges the court to reject the Claimant’s arguments, resolve all issues in favour of the Defendant, dismiss the suit in its entirety and award substantial costs.

DECISION OF THE COURT

 

I have digested the facts of this case as given in the various processes and evaluated the evidence as it were, and I think the issue to be determined is: Whether on the strength of the pleadings and evidence, the Claimant has proved his case to be entitled to all or any of the reliefs sought.

 

Before a consideration of the substantive issue, it is pertinent to consider the objection on the non-signing of the Complaint and the court ordered address on the proper order to make. Recall that parties filed and exchanged pleadings, called witnesses, tendered documents, and the matter proceeded to a full plenary trial. At the stage of adoption of final written addresses, the Defendant raised an objection that the originating Complaint was incompetent for want of signature, thereby challenging the jurisdiction of the Court. Upon divergent positions taken by counsel on the proper consequential order to make, the Court ordered written addresses on that narrow issue and later resolved to take the jurisdictional question together with the substantive suit.

The Court is mindful that jurisdiction is the foundation upon which the adjudicatory powers of a court rest. Where a court lacks jurisdiction, any proceedings conducted, no matter how well conducted, are a nullity. This principle, settled beyond controversy, was laid down in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and has been consistently reaffirmed in a long line of authorities.

The Defendant’s objection is that the Complaint, being the originating process, was not signed either by the Claimant or by a legal practitioner known to law, in violation of Order 3 Rule 10 (c) (i) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, as well as the Legal Practitioners Act. The Claimant candidly conceded that the Complaint was unsigned but contended that the defect amounted to a mere irregularity, curable under the Rules, and that in any event the proper order was striking out, not dismissal.

The law on unsigned originating processes is no longer in doubt. An unsigned originating process is no process in the eyes of the law. It is void ab initio and incapable of invoking the jurisdiction of the Court. The Supreme Court has consistently held that the requirement that court processes be signed by a legal practitioner whose name is on the roll is not a matter of procedural nicety but one of substantive law rooted in the Legal Practitioners Act. Decisions such as Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, FBN v. Maiwada (2013) ALL FWLR (Pt. 661) 1433, M.W. & T.A.S. v. Yakubu (2013) ALL FWLR (Pt. 694) 23 and D.O.V.F. Ltd v. S.G.B. Ltd (2018) LPELR-43710 (SC) leave no room for equivocation. Most recently, the Supreme Court in State v. Gideon (2025) 1 NWLR (Pt. 1973) 373 emphatically reaffirmed that an unsigned originating process is incurably defective.

The Claimant’s reliance on Order 5 of the Rules and the modern attitude against technicality cannot avail him. Where the defect complained of is one rooted in substantive law, rules of court, being subsidiary legislation, must yield. Equity follows the law and cannot be invoked to breathe life into a process that is dead on arrival. The Court therefore finds and holds that the Complaint filed on 6^th July, 2022 was incompetent and incapable of vesting jurisdiction in this Court. All proceedings conducted upon it, including the trial itself, are consequently a nullity.

The next question, which has generated robust arguments from both sides, is the proper order to make in the circumstances. The Claimant urges striking out, while the Defendant insists on dismissal, relying particularly on Order 61 Rule 7 of the NICN Rules and authorities on withdrawal after joinder of issues. The Court has carefully examined Order 61 Rule 7. That provision applies where a claimant withdraws or discontinues a suit after the defendant has joined issues. In the present case, the Claimant did not withdraw his action on the merits; rather, he conceded a jurisdictional defect when it was raised by the Defendant. More importantly, where a court finds that it lacks jurisdiction ab initio, it is precluded from making any order that touches on the merits of the dispute. To dismiss a suit in such circumstances would amount to a determination on the merits by a court that has already found itself without jurisdiction. The authorities relied upon by the Defendant, including Eronini v. Iheuko (1989) 1 NSCC 503, are distinguishable. Those cases involved validly commenced actions where the court had jurisdiction but exercised discretion in the context of discontinuance after trial. They do not apply where the originating process itself is a nullity.

On the contrary, the weight of authority favours striking out where proceedings are incompetent for want of jurisdiction. In Yongo v. Hanongon (2022) LPELR-57282 (SC), the Supreme Court held that where an originating process is fundamentally defective, the only proper order is striking out, as the court never had jurisdiction to adjudicate the matter. Similar positions were taken in Buhari v. Adebayo (2014) LPELR-22521 (CA) and Virya Farms Ltd v. SGB Ltd (2018) LPELR-43710 (SC).

The Court is also persuaded that striking out best accords with justice, as it preserves the right of the Claimant to re-approach the Court, if so advised, with a properly initiated process, without permanently foreclosing his claims on account of counsel’s error. Accordingly, the Court holds that the proper and lawful order to make is one striking out the suit.

Given the above finding, the Court lacks the jurisdictional footing to pronounce on the substantive issues raised by the parties, including the claims for acting allowance, pension remittances and defamation. Any opinion expressed thereon would be academic and of no legal consequence. But can this be the end of the matter given the status of this court as a court of first instance? I think not. Since trial has concluded, witnesses have testified, and addresses have been taken, it is pragmatic to consider the substantive case on the merits thereby avoiding unnecessary retrial and delay. This approach is consistent with the guidance of the Supreme Court in cases such as A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 and Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518.

The coast is now clear for the consideration of whether on the strength of pleadings and evidence before this Court, the Claimant has proved his case to be entitled to all  or any of the reliefs sought. The case of the Claimant against the Defendant is predicated on the alleged wrongful deductions from terminal benefits, failure to remit pension contributions and defamation arising from a publication made to the Claimant’s Pension Fund Administrator. Since a case is circumscribed by the reliefs sought as in the case Gabriel Ativie v. Kabelmetal (Nig.) Ltd (2008) LPELR-591(SC); (2008) 10 NWLR (Pt. 1095) 399; (2008) 5-6 SC (Pt. II) 47, the reliefs claimed by the Claimant shall remain the focus in this case. I therefore intend to analyse and evaluate the pleadings and evidence in this case in the light of the reliefs and will only refer to the argument of the parties where necessary.

The burden is on a Claimant to show that she is entitled to the reliefs sought and because she is the one seeking for judgment on the existence of certain facts which he asserts, the burden of proving that those facts exists rest with him. In other words he who asserts must prove. See the cases of Buhari v. Obasanjo (2005) 7 S.C.N.J. 47, Bayelsa v. Rivers (2006) 12 S.C.N.J. 111, Womiloju v. Anibire (2010) 42 (pt. 2) N.S.C.Q.R. 894 and Ekeagwu v. Nig. Army (2010) 42 (pt. 2) N.S.C.Q.R. 1253. This propositions is also the purport and tenure of sections 131, 132 and 133 of the Evidence Act, 2011. There is also the requirement that the Claimant must do so on the strength of his own case and not on the weakness of the defence subject to some exceptions. See the Supreme Court cases of A.I.C. Limited v. N.N.P.C. (2005) 5 S.C.N.J. 343-344 and Abimbola v. Abatan (2001) 4 S.C.N.J. 82. The onus is therefore on the Claimant to prove his case and the reliefs sought. The law is that in a labour case such as this one, it is the Claimant who has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Oyo State v. Alhaji Apapa & Ors (2008) 11 NLLR (Pt. 29) 284 and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39.  In other words, it is the duty of the Claimant to plead only such facts and materials as are necessary to sustain the reliefs sought and adduce evidence to prove same. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd (2008) LPELR-591 (SC); (2008) 10 NWLR (Pt. 1095) 399; (2008) 5-6 SC (Pt. II) 47.

 

In prove of the claims, the Claimant in addition to giving evidence himself, tendered thirteen (13) exhibits (CW1-CW13). Exhibit CW1 is Letter of Appointment dated 18^th September, 2002. Exhibit CW2 is the Confirmation of Appointment as Assistant General Manager dated 29^th August, 2005. Exhibit CW3 is the Confirmation of Appointment as General Manager dated 15^th December, 2008. Exhibit CW4 is the Internal Memo dated 02/10/2019 informing the staff of the appointment of the Claimant as Acting Managing Director. Exhibit CW5 is the Handing Over Memo by the outgoing MD/CEO dated 3^rd October, 2019. Exhibit CW6 is the resolution of the Board relieving the Claimant from the position of Acting Managing Director/CEO with immediate effect. Exhibit CW7 is the letter of termination of the Claimant’s appointment as General Manager with immediate effect dated 22^nd December, 2020. Exhibit CW8 is the Confirmation of the Un-remittance of Accrued Pension dated 17/09/2021. Exhibit CW9 is the letter Re: Forwarding Benefit Application Form dated 13^th July, 2021. Exhibit CW10 is letter of demand by Claimant’s Solicitor dated 4^th January, 2022. Exhibit CW11 is the Reply to the Letter of Demand dated 11/03/2022. Exhibit CW12 is the letter from the Claimant’s Solicitor demanding the withdrawal of allegation of absconding from duty dated 11^th March, 2022 while Exhibit CW13 is the Conditions of Service.

 

A close look at the above exhibits against the evidence, reveals the following: That the Letter of Appointment (Exhibit CW1) only shows the Claimant was appointed as a Manager effective from 1^st September, 2002. The Exhibit does not in any way assist the Claimant in proving the instant reliefs. That the appointments of the Claimant as Assistant General Manager and General Manager evidenced by Exhibits CW2 and CW3 respectively, did not talk about the remunerations attached to the offices and therefore are of no assistance to the reliefs sought. That Exhibit CW4 remains only a circular informing staff of the Defendant of the appointment Claimant as the Acting Managing Director without more. That Exhibit CW5, the Hand Over by the outgoing Managing Director to the Claimant is totally irrelevant to the facts in issue. That the Resolution of the Board relieving the Claimant of the position of Acting Managing Director (Exhibit CW6) and the Letter of Termination of Claimant’s appointment as General Manager (Exhibit CW7) have little or no probative value in proving entitlements to the reliefs sought by the Claimant. That Exhibits CW8 and CW9, the Defendant’s letter to Trust Funds Pension Limited informing them of absconding of the Claimant from office and the letter from the Trust Funds Pension Limited refusing to accede to the processing of Claimant’s claims respectively are the pivot of the defamatory reliefs. Even at that the position of the Defendant that the Claimant absconded since stepping down as the Acting Managing Director was not controverted even under cross examination. So on that score, the case for defamation is not made out to ground the relief thereof. That the letter of demand from the Claimant’s Solicitors (Exhibit CW10), apart from articulating the claims of the Claimant remains but only a letter of demand and nothing more. That Exhibits CW11 and CW12, the correspondences between Claimant’s Solicitors and the Defendant, led to the resolution and payments of N1,011,105.92 to the Claimant  made up of refund of deduction on official car, salary for December, 2020, Staff Bonus underpayment and salary in lieu of notice. That the Conditions of Service (Exhibit CW13), which is supposed to give impetus to the reliefs by the Claimant did not go far enough. The attempt by the Claimant to link and justify the claim for the wrongful deduction of the acting allowance in the sum of N4,606,052.15 to 5.05 (c) (i) is of no moment. The section provides for the payment of 100% acting allowance which is not specified in the Conditions of Service, while the Claimant’s claim is based on the salary of the Managing Director.   

 

Against this background, it is not difficult to conclude that all the monetary claims by the Claimant did not pass the two-way test of entitlement and quantum and therefore cannot be granted. Reliefs (6) and (7) is for the payment to the Claimant of the sums of Twenty Million Naira only (N20,000,000. 00) as damages for false and defamation and Five Million Naira (N5,000,000.00) for failure to remit accrued pension cannot be granted. Damages of whatever kind are a function of liability, and since the Claimant has failed to establish the liability of the Defendant in the instant case, he will not be entitled to the award of damages. See Union Bank of Nigeria Plc v. Soares (2012) 29 NLLR (Pt. 84) 329 at 377. 

 

The same thing goes for relief (8) for the cost of action. The relief for cost of action is in the class of special damages which needs to be specifically pleaded and proved which is not available here. Not only that the said relief cannot also pass the two-way test of entitlement and quantum.

 

In any case the failure of the Claimant to discharge the burden placed on him to be entitled to the reliefs sought has a dire consequence. My lord, Niki Tobi, JSC (of blessed memory) captured the effects of such a failure in his characteristic prose in the case of Orji v. Dorji Textiles (2009) 12 S.C.N.J. 266-267, thus:  

 

“The burden is on a plaintiff to show that he is entitled to the reliefs sought. That burden does not shift to the defendant. See Elias v. Disu (1962) 1 All N.L.R. 214; The Nigerian Safety Insurance Co. Ltd. v. Zaria Cooperative Credit Marketing Union Ltd. (1978) 1 N.C.A. 1; Echeazu v. Awka Community Council (1980) 7 C.A. (pt. 1) 103; Combined Trade Limited v. All States Trust Bank Limited (1998) 2 N.W.L.R. (pt. 576) 56. After all, a plaintiff should not rely on the weakness of the case of a defendant but rather on the strength of his case as proved in court. See Attorney-General of Anambra State v. Onu Selogun (1987) 4 N.W.L.R. (pt. 66) 547; Nimanteks Associates v. Marco Construction Co. Ltd (1991) 2 N.W.L.R. (pt. 174) 411; Tokimi v. Fagite (1999) 10 N.W.L.R. (pt. 624) 588, Olowu v. Olowu (1985) 3 N.W.L.R. (pt. 13) 372. Accordingly, a plaintiff who fails to prove the relief sought goes home without victory. There are no two ways about it. Our adjectival law is as constant as that, like the sun rising from the East and setting in the west.”

 

I have therefore no hesitation in dismissing the Claimant’s case against the Defendant for lacking merit and prove.

 

Judgment is entered accordingly with no order as to cost.

 

 

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HON. JUSTICE M. A. NAMTARI