Mr. Adefowowe Adebamowo -VS- Sterling Bank Limited (Formerly Known as: Sterling Bank PLC)National Industrial Court of Nigeria- Judgment Portal

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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

29^TH DAY OF OCTOBER, 2025

SUIT NO. NICN/CA/38/2025

Mr. Adefowowe Adebamowo …………………………………………….………. Claimant/respondent

AND

Sterling Bank limited

(Formerly known as sterling bank plc) ……………………………………..……. Defendant/applicant

RULING.

This deals with preliminary objection dated 29/9/2025 and filed on 30/9/2025, wherein the defendant/applicant is praying for striking out of this suit for being incompetent.
The ground for the objection are as follows:-
The entire claimant’s pleadings and statement on oath without the proper exhibits with relevant foundations offends section 3(2)(c) and (d) of the NICN Practice direction 2022.
The same suit being incompetent has failed to activate the jurisdiction of the court and bound to be struck out.
A written address accompanied the preliminary objection. Counsel for the defendant/applicant in oral adumbration adopted the written address as his argument of the application. In the written address a single issue was distilled for determination, to wit:

Whether considering the relevant provisions of the practice Direction of this court and claimant’s pleadings, the suit is competent and if not whether same is bound to be struck out.

In arguing the sole issue for determination counsel refers to section 3(2)(c) and (d) (3) (b) (i) of the NICN Practice direction 2022, and claimant’s pleadings and submitted that this suit is incompetent and should be struck out. As juxtaposing the provisions ogf the practice direction, 2022 with the claimant’s frontloaded exhibits, it will be clear that there is no compliance with the practice direction. It is submitted that the said exhibits are all photocopies without the requisite foundations to tender them and marked them as exhibits. There are also no stipulations in pleadings that the originals would be provided at the hearing.
Counsel further submitted that in the entire claimant’s exhibits submitted to this court they are infected with the same virus. Reference was made particularly to exhibits AA1-AA5 in paragraphs 4-9 of his statements of facts; exhibits AA6-AA7 in paragraphs 13 and 17 of the statement of facts respectively. Also, exhibits AA8-AA9 in paragraphs 22 of the same statement of facts. According to counsel, the same applies to exhibits AA10; AA11; AA12, claimant has not stated the original would be produced at the trial. Again, exhibits AA13; AA14; AA16; AA17 in paragraphs 29, 43, 52 and 61 of claimant’s statement of facts respectively are all photocopies without foundation on the whereabouts of originals and stipulations to produce the relevant original at the trial.
According to counsel, the claimant’s statement on Oath is caught by the same virus which renders the entire pleadings incompetent. In the circumstance, the defendant was unable to file its defence in accordance with the provisions of the practice direction.
Counsel further argued that the said practice direction is a subsidiary legislation which must be obeyed. It is submitted the consequence of this non-compliance is provided under s. 3 (3) (b) (i) of the Practice direction, which requires that the suit be struck out for being incompetent. Counsel urged the court to so hold.
In reaction to the preliminary objection and the written address, the claimant filed a reply in opposition to the preliminary objection. In his oral submission before the court A. G, Robert, Esq; counsel for the claimant adopted the reply as his argument on the preliminary objection.
In the reply counsel submitted that after a painstaking perusal of the content of the defendant/applicant’s notice of preliminary objection and the provisions of section 3(2) (c) & (d) and 3(b) (i) of the National Industrial Court of Nigeria Practice Direction, 2022, vis-à-vis the claimant/respondent’s statement of facts and witness written statement on oath dated and filed on the 16/7/2025, the claimant/respondent diagnosed no legal merit on the defendant/applicant’s notice of preliminary objection via the lenses of law. According to counsel, this reply exposes the unmeritorious status of the notice of preliminary objection.
Counsel in arguing in opposition to the preliminary objection refers to paragraphs 2.1 to 2.6 of the written address accompanying the preliminary objection and submitted that there is no merit in the argument that this Court is devoid of the requisite jurisdiction to entertain and adjudicate over this suit on the ground that same is incompetent on account of non-compliance with the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022, as the claimant/respondent has failed to state in his pleadings and Written Statement on Oath that the original copies of his pleaded documents/exhibits would be produced for inspection at the hearing of the trial and has also failed to lay proper foundation for the divisibility of his pleaded documents/exhibits as all the said pleaded documents are frontloaded in their secondary forms.
Counsel in reaction to the above alleged unmeritorious submission of the defendant/applicant, submitted that the claimant/respondent has strictly complied with the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 to wit:
Paragraph 70 of the Claimant/Respondent’s Statement of Facts dated and filed on the 16^th day of July, 2025 reads thus: “The Claimant hereby pleads photocopies of all the documents/exhibits herein pleaded and avers that he has taken step to look for the original copies of the said pleaded documents/exhibits, but he could not find them; und therefore he elects to place reliance on the photocopies/secondary forms of the said pleaded documents/exhibits at trial in the event that the original could still not been found at the time of trial “.
Paragraph 72 of the claimant/respondent’s Statement on Oath deposed, dated and filed on the 16^th day of July, 2025 also reads thus: ”The claimant hereby pleads photocopies of all the documents/exhibits herein pleaded and avers that he has taken step to look for the original copies of the said pleaded documents/exhibits, but he could not find them; and therefore he elects to place reliance on the photocopies/secondary forms of the said pleaded documents/exhibits at trial in the event that the original could still not been found at the time of trial”.
Paragraphs 27, 49 and 71 of the claimant/respondent’s Statement of Facts dated and filed on the 16^th of July, 2025 are also in strict compliance with the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022.
Paragraphs 28, 50 and 73 of the claimant/respondent’s Statement on Oath deposed to, dated and filed on the 16^th of July,2025 are also in strict compliance with the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022.
It is submission of counsel that in the light of the above, the defendant/applicant’s notice of preliminary objection is unmeritorious, frivolous and time-wasting and same is liable to be dismissed by this Court with a grave cost of N5,000,000.00 (Five Million Naira), as it constitutes a ploy just to delay the prosecution cum hearing of this matter.
It is also the submission of counsel that assuming, but not conceding, that the claimant/respondent’s pleadings and Statement on Oath are not in compliance with the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022, the said non-compliance cannot, in any stretch of legal imagination, deprive this Court of its jurisdictional competence to entertain and adjudicate over this matter on the following grounds to wit:
That the National Industrial Court of Nigeria Practice Direction, 2022, being Rules of Court, non-compliance with its provisions cannot deprive this Court of its jurisdiction to entertain and adjudicate this matter when as a matter of fact, the provisions of Section 254C(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Section 7(1) of the National Industrial Court Act, 2006, being the statutes creating this Court, have conferred jurisdiction on this Court to entertain and adjudicate this matter. The law is trite that Rules of Court, no matter how well made or couched, cannot, by any stretch of legal imagination, confer jurisdiction on a Court of law. This is because no Court of law has the jurisdiction or legislative competence to expand its jurisdiction given to it by either the Constitution or the statute creating it or by the legislature via the instrumentality of an enactment. The best a Court of law can do is to expound its jurisdiction, but never to expand its jurisdiction. Thus, to say that the provisions of the National Industrial Court of Nigeria Practice Direction, 2022 command the legal weight to deprive this Court of its jurisdiction guaranteed by the Constitution and the National Industrial Court Act, 2006 as a result of non-compliance with same is to say that this Court has usurped the Constitutional Legislative Powers of the National Assembly and has expanded her jurisdiction via the instrumentality of the National Industrial Court of Nigeria Practice Direction, 2022. In lending judicial credence to the foregoing legal submission, the Supreme Court, in OKEZIE v FEDERAL ATTORNEY-GENERAL & ANOR (1979)LPELR-2448(SC), enunciated and sensitized the world of legal minds to wit:

“The court also found it necessary to point out that Supreme Court Rules, 1977 on which counsel relied, in particular Order 5, cannot confer jurisdiction on, or enlarge the jurisdiction of the Supreme Court, since the Supreme Court cannot confer jurisdiction on itself and thereby usurp the function of the constitution making authority or the legislature. Per ALEXANDER, JSC (P. 3, paras. A-B)’’.

The above Supreme Court holding is further reinforced and given judicial pronouncements in the following judicial authorities: IFEAJUNA v. IFEAJUNA (2000) 9 NWLR (PT.671) 248, OLUBUKOLA & ANOR V. A.G OF LAGOS STATE & ORS (2016) LPELR-41451(CA); UGBA & ANOR V. SUSWAM & ORS (2012) LPELR-8635(CA).
According to counsel it is worthy of note that by virtue of the combined provisions of Section 254 D(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Section 7(2) of the National Industrial Court Act, 2006, it is only the National Assembly that has the Constitutional cum statutory legal power to enact a law to expand the jurisdiction of this Court. The President of this Court does not have the power to expand the jurisdiction of this Court via the instrumentality of the advent of the National industrial Court of Nigeria Practice Direction, 2022. Thus, any non-compliance with the provisions of the National Industrial Court of Nigeria Practice Direction, 2022 cannot render a suit incompetent and deprive this Court of its constitutionally cum statutorily given jurisdiction to entertain and adjudicate a suit.
Counsel also submitted that a painstaking perusal of the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 indisputably reveals that the said provisions bother on admissibility and inadmissibility of evidence, as they require the production of original documents at trial and laying of proper foundation for admissibility of secondary evidence, which is already taken care of by the provisions of Sections 85, 86, 87, 88, 89, 90, 91 and 92 of the Evidence Act, as Amended. The said provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 are therefore unconstitutional as the President of the National Industrial Court does not have the Constitutional power to make Rules on evidence, as such power is constitutionally and exclusively reserved for the National Assembly and not even the House of Assembly of the various states of the Federation can attempt to so do. By virtue of ITEM 23 on PARTI of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as Amended, Evidence is a subject-matter of legislation on the Exclusive Legislative List, which confers on the National Assembly the exclusive legislative competence to legislate on it. Thus, by virtue of the combined provisions of Section 4(3) & (7)(a) and ITEM 23 on PART 1 of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as Amended and Sections 2 & 3 of the Evidence Act, as Amended, it is only the National Assembly that has the exclusive legislative power to enact laws on the subject-matter of Evidence and it is only Acts of the National Assembly that can regulate the admissibility cum inadmissibility of evidence. Hence, by virtue of the provisions of Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria, as Amended, the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022, being inconsistent with the provisions of Section 4(3) & (7)(a) and ITEM 23 on PART1 of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as Amended, must be declared null and void to the extent of their inconsistency as the President of this Court does not have the Constitutional Power to make Rules or Practice Direction on Evidence or admissibility cum inadmissibility of evidence.

Again, by virtue of the provisions of Section 254 F(l) of the 1999 Constitution of the Federal Republic of Nigeria, as Amended, the Constitutional Powers of the President of the National Industrial Court to make Rules and Practice Directions for the regulation of the practice and procedure of the National Industrial Court are made subject to the provisions of any Act of the National Assembly. And by virtue of the provisions of Sections 2 and 3 of the Evidence Act, as Amended, it is only the Evidence Act and any other Act enacted by the National Assembly that can regulate the admissibility, inadmissibility and exclusion of evidence in any judicial proceedings or trial and not the Rules of Court or Practice Directions of Court. Thus, the provisions of Section 3(2)(c) & (d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 are subject to the provisions of Section 2 and 3 of the Evidence Act, as Amended.

It is submitted that a painstaking perusal of the provisions of Section 3(2)(c) &(d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 will indisputably show that the said provisions tend to promote and enforce TECHNICAL JUSTICE over SUBSTANTIAL JUSTJCE. The Law is trite that all Courts of law are seriously warned and enjoined to invoke their interpretative cum inherent jurisdiction to deviate from the enforcement of any Rules of Court or Practice Directions which its application will promote, applaud and enthrone technical justice over substantial justice (see ABAYOLA v DIMIARI (2024) LPELR-46227 (SC)). Thus, flowing from the foregoing principle of law, the provisions of Section 3(2)(c) &(d) & (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 cannot be promoted, applauded and enthroned by this Court against the insurmountable cum invincible protesting voice of substantial justice in view of Section 2 of the National Industrial Court of Nigeria Practice Direction, 2022 which stipulates that the said Practice Direction is made with the view to guarantee continued access to justice. Furthermore, the said provisions of Section 3(2)(c) & (d)& (3)(b)(i) of the National Industrial Court of Nigeria Practice Direction, 2022 cannot be upheld against the principle of law that a Court of law should not visit the sins of counsel on the litigants.
In concluding his submission, counsel argued that in the light of the above legal explication cum submissions, this Court should find and hold that the defendant/applicant’s notice of preliminary objection lacks merit and consequentially dismiss same with a grave cost of N5,000,000.00 (Five Million Naira) in favour of the claimant/respondent, as it constitutes a ploy just to delay the prosecution cum hearing of this matter.
In reply on points of law, counsel for the defendant/applicant submitted that the crux of claimant’s reply is summarized thus;
That his pleadings are in compliance with the practice direction.
That the practice direction is unconstitutional being in conflict with constitution.
That the fault of counsel should not be visited on the party.
According to counsel in the first limb, claimant has carefully avoided the paragraphs of the pleadings and documentary evidence which were stated are not in compliance with the practice direction. Counsel argued that by virtue of section 1322 of the Evidence Act, the court is enjoined to take judicial notice of the processes in court. In the instant case, the stipulated exhibits as shown are not in compliance with the practice direction of this court.
It is also submitted that compliance with Practice direction was meant to be for each documentary evidence sought to be tendered as exhibit and not selective or general averment in one ‘designated’ paragraph as argued by the claimant. More so, the said general averment in his ‘designated paragraph 62 does not address any particular exhibit unless it is a case of ‘dumping’ of exhibits on the court which is not permitted in Law. Consequently, there is no requisite compliance which renders the pleadings incompetent. Counsel further argued that the issue is not whether the court has jurisdiction under S. 254 of the 1999 Constitution as argued, but whether the suit was initiated with due process of the Law to activate the jurisdiction of the court : Madukolu v Nkemdilim (1962) 2 NSCC P,374,
In the second limb, claimant argues that the practice direction is unconstitutional and places reliance on S. 1 (3) of the 1999 Constitution amongst other authorities Counsel submitted that the Claimant’s entire argument on the constitutionality of the Practice direction can only be likened to all ‘cloud and wind without rain’. A provision is unconstitutional if its asserts a contrary view to the constitution: S. 1(3) 1999 Constitution. In the instant case, the Practice direction is in line with the Constitution and Evidence Act without making or providing any contrary directive. Counsel urged the court to discountenance same.
In the 3^rd limb, Claimant argues that if there is no compliance, then, it amounts to mere error of counsel which should not be visited on the party. It is submitted that the defence of error of counsel does not cover strategic blunders, tactic or such elected wrong approach to litigation as in the instant case. To support this contention counsel relies on the Supreme Court dictum in Isitor v Fakorade (2018) ALL FWLR Pt. 955 P. 494 at 508-509 G-A thus:

The only conclusion available from the totality of paragraphs 4, 5, 6 and 8 of the supporting affidavit is that what the learned counsel for the Appellant/Applicant calls “inadvertence or error of judgment” on his part is nothing but failure of strategy or tactic, which goes to the merit of the appeals either at the court below or here. This court has made the point loud and clear in Nwafor Elike v.Nwankwoala (1984) All NLR 505, (1984) 12 SC 301, that the rule cannot be used to rectify strategic blunders committed by counsel in the cause of litigation, as the learned appellant’s counsel did in this case. A counsel, once properly briefed, takes full charge of the case as regards the manner of conducting the case, including the strategies thereby. It is for this reason that counsel cannot, in case of failed strategies, take shelter under the omnibus claim of inadvertence or negligence.

Counsel urged the court to discountenance such reliance on fault of counsel and strike out the suit for non-compliance with the Law as stipulated.

COURT’S DECISION:

I have carefully considered the processes filed so far in this case, the notice of preliminary objection, and the written addresses filed by counsel for both sides. I have also attentively listened to oral submissions of counsel for the parties in adumbration before the court.
Let me point out here that counsel for the defendant/applicant in his application has referred to the provisions of the practice direction as sections, this is wrong appellation. The correct and normal way referring to provisions of practice direction is to refer to them as paragraphs. Therefore, in this decision I will refers to the provisions of the practice direction as paragraphs.
It is apparent that the objection of the defendant is based on non-compliance with paragraph 3(2) (c), and (d) of the National Industrial Court of Nigeria Practice Direction, 2022, on the requirement to indicate if the original of a frontloaded document will be available/produced at the hearing of the matter and where such document so frontloaded is such that will require the laying of a foundation before it can be admitted in evidence, such claimant must indicate as and must lay such necessary foundation in the statement of facts and witness statement on oath.
For proper appreciation I hereby reproduced the relevant provision of the practice direction based on which this objection is predicated. They are:-

Paragraph 3(2) MARKING OF DOCUMENTS/EXHIBITS

From the date of this practice direction with respect to all frontloaded documents attached and/or referred to in claimant’s statement of fact, defendant’s statement of defence or reply to statement of defence as well as in the written statement on oath, I hereby direct as follows:-

…………………………………………………………………………

(c) Where a claimant intends that a frontloaded document will be tendered in evidence at the hearing of a matter, such claimant must indicate if the original of such frontloaded document will be available/produced for inspection at the hearing of the matter.

(d) Where the document so frontloaded is such that will require the laying of a foundation before it can be admitted in evidence, such claimant must indicate as and must lay such necessary foundation in the statement of facts and witness statement on oath.

(3)(b) where a process that does not comply with the provisions of this practice direction is accepted for filing by the Registry of the court, the judge to whom such process is assigned for hearing shall treat such process as incompetent and shall,

if the process is a claimant’s statement of fact, reply to statement of defence and/or witness statement on oath, strike out the entire suit.

The above quoted provisions of the Practice Direction are very clear and unambiguous. There is no disputing the facts that the provisions of the rules or Practice Direction are intended for the orderly conduct of cases before the court and are therefore required to be complied with by all litigants and prospective litigants. Where there is non-compliance with the provisions of the Practice Direction in commencement of action, such originating process will not be accepted for filing by registry of the court. The Practice Direction has provided consequences for non-compliance which is that such process shall not be accepted for filing. This clearly shows that the provision has made it mandatory for rejection of process not in compliance with practice direction. Where the non-compliant process is accepted, the court is enjoined to treat such process incompetent and strike out the entire suit. see paragraph 3(3)(a) (b) (i) of the practice direction.
In the case at hand, the defendant has in paragraph 2.4 of the written address in support of the preliminary objection enumerated the exhibits that were said to have been infected with the virus of non-compliance with paragraph 3(2) (c) and (d) of the NICN Practice direction, 2022. However, the counsel for the claimant has in his submission stated that there is no legal merit in the objection of the defendant. counsel insisted that there is strict compliance with the provisions of paragraph 3(2) (c)& (d) (3)(b)(i) of the NICN Practice Direction, 2022. Counsel went on to reproduce paragraph 70 of the statement of facts and paragraph 72 of the claimant’s witness statement on oath. Paragraphs 27, 49 and 71 of the statement of facts were referred to as well as paragraphs 28, 50 and 73 of the claimant’s witness statement on oath to support compliance with practice direction.
The counsel for the defendant had in reply on points of law pointed out that the paragraphs reproduced by the claimant were general in nature and not in response to specific exhibits referred to by the defendant in paragraph 2.4 of the written address.
The counsel for the claimant has also argued that assuming but conceding that the claimant’s pleadings and statement on oath are not in compliance with the provisions of paragraph 3(2)(c)& (d) & (3)(b)(i) of the NICN practice direction, the said non-compliance cannot by any stretch of any imagination, deprive this court of its jurisdictional competence to entertain and adjudicate over this matter. Counsel also argued that the provisions of the Practice Direction are inconsistent with the provision of the Constitution that granted the National Assembly power to make laws on Evidence and is therefore, null and void.
Let me say at this juncture that our jurisprudence has recognized two types of jurisdictions. There is procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. in the case at hand the objection of counsel for the defendant to the non-compliance is based on procedural jurisdiction of the court.
For substantive jurisdiction, it is conferred by the constitution or statutory provision in that respect. See section 254C of the Constitution of the Federal Republic of Nigeria, 1999, as amended and section 7 of the National Industrial Court Act, 2006. The constitutional and statutory jurisdiction is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the court or waive any defect in the procedural jurisdiction of court by acquiescing in the defect.
It is clear to me that a careful perusal of the statement of facts and the claimant’s witness statement on oath will in no doubt revealed that the paragraphs of the statement of facts and witness statement on oath in which exhibits AA1 – AA7, AA10 – AA11, AA13, AA16 – AA17, were pleaded or referred to were not in compliance with paragraph 3(2) (c)& (d) of the NICN Practice Direction as the averment were silent on whether the claimant will be tendering in evidence photocopies or originals of the documents. There is also no foundation whatsoever laid if the photocopies attached to the originating process are the documents to be tendered in evidence at the trial. This is a clear infraction of the practice direction and not issue of substantive jurisdiction of the court.
Let me say that the argument of counsel on unconstitutionality of practice direction was made in disregard of the facts that the power vested in the president of the court to make rules and practice are both constitutional and statutory. See section 254D of the Constitution and section 36 of the National Industrial Court Act, 2006. This means the practice direction is not in conflict with the constitution.
In a situation where there is non-compliance with rules, the party alleging non-compliance is free to condone or waive the non-compliance. In the case at hand the defendant by its action seems not to have condoned or waived the non-compliance with Practice Direction. The reason being that the defendant has entered a conditional appearance and did not file any defence to the action. Rather it raised objection to the non-compliance via this preliminary objection. It may be argued that by order 5 Rule 1 of the rules of this court non-compliance amount to mere irregularity. And vide order 5 Rule 2(1) an application to set aside irregularity should be made within reasonable time and before fresh steps are taken after becoming aware of the irregularity. The task now is to find out if order 5 rule 2(1) of the rules of this court is applicable to the situation under consideration. For proper appreciation, the provision of order 5 rule 2(1) of the rules of this court read:-

2.—(1) An application to set aside for irregularity any step taken in the course of any proceedings, may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

As earlier stated, I have considered the statement of facts and its accompanying processes, it is evident that the non-compliance is respecting non-indication of whether photocopies or original documents are going to be tendered in evidence and absence foundation to pave way for reception of photocopies of documents in evidence. As per provisions of paragraph 3(2) (c) and (d). As there is nothing to indicate compliance with sub-paragraphs (c) & (d) of the practice direction, which require a claimant relying on frontloaded document to indicate whether original or photocopy of document will be tendered in evidence and indicate if the original of such frontloaded document will be available/produced for inspection at the hearing of the matter. There is also absence of laying of foundation as contained in sub-paragraph (c) of paragraph 3(2) of the Practice Direction.
However, despite the glaring non-compliance with the Practice Direction, the claimant want this court to hold that there is compliance with rules of court. It is to be noted that the Practice Direction was purposely and specifically made to govern commencement of action in order to avoid delay. Therefore, order 5 rule 2(1) will not be of any assistance in this case. as it is not applicable because it concerns proceedings and not commencement of action.
Furthermore, in law it is well settled that where an issue is governed by general and specific provisions, the general provisions must give way to the specific provision. This means in such a situation the specific provisions of the law will prevail and apply to the issue and not the general provisions. The specific provision will also be deemed to have anticipated the issue as against the general provision. The applicable latin maxim to this is "generalia specialibus non derogant" the maxim generalia specialibus non derogant applies here and it means that general things do not derogate from special things. Thus, a specific provision is not affected by a general provision "In law, any specific provision excludes the general one. The law is that where an issue is dealt with specifically by some provision of an enactment or document, general provisions of the same document and even other document dealing generally with that issue are of no avail as the specific provision will govern that issue exclusively. See Ardo V. Nyako (2014) All FWLR (pt. 744) 130 at 159 (sc); F.M.B.N V. Olloh (2002) 9 NWLR (pt. 773) 475 at 286 - 287 (SC); Akpan V. state (1986) 3 NWLR (pt. 27) 225 at 239; Noclink Ventures Ltd V. Aroh (2020) 1 SCNJ 56 at 84 - 85; Schroeder V. Major & Co. (Nig.) Ltd (1989) 2 SCNJ 210; Kraus Thompson Organisation V. N.I.P.S.S (2004) LPELR-1714(SC), Access Bank Plc V. Etim (2021) LPELR-55913(CA); Schroeder & Co. v. Major & Co Ltd (1989) 2 NWLR (PT 101) I (S.C); (1989) 2 SCNJ 210 (also reported as Martin Schroeder & Co. v. Major & Co Ltd in (2002) F.W.LR. (Pt. 128) 1304 at 1316).
A careful perusal of the provisions of Order 5 of the Rules of this court and the provisions of paragraph 3(2)(c) and (d) of the Practice direction will revealed that the provisions of the Practice Direction are specific provisions and the provisions of Order 5 of the Rules of this Court are general provision. This means they must give way to the practice Direction being specific on the issue under consideration.
It is also clear to me that the provisions of Order 5 of the rules of this court apart from being general in nature, they are applicable to steps in the course of proceedings. They do not apply to initiation of an action which is in issue here. The provisions of Order 5 of the rules of this court which considers non-compliance as irregularity is in respect of proceedings before the court and not related to commencement of an action like the current objection which is predicated on non-compliance in respect of commencement of an action. There is a world of difference between non-compliance during the proceedings and non-compliance in commencement of an action. Order 5 of the rules of the court applies to non-compliance regarding steps to be taken in the course of proceedings before the court and not to condition precedent in the commencement of an action before the court.
It is clear from the provision of paragraph 2 of the Practice Direction that it is to prohibit the filing of originating process that does not comply with the Practice Direction in this case the aspect that deals with indication of whether originals or photocopies of document are to be tendered in evidence and laying foundation for admissibility of documents. The Practice Direction is very clear and unambiguous that non-compliance vitiates the process and must be struck out for being incompetent. See paragraph (3)(b)(i) of the practice direction. By the Practice Direction the non-compliance in commencement of any proceedings shall nullify the said proceedings. The reason being that there is no discretion for deviation, compliance with the Practice Direction is mandatory. The court and parties are bound to give effect to the Practice Direction. This is more obvious when distinction between non-compliance with rules in the course of the proceedings and non-compliance in commencement of an action are considered. The non-compliance at any stage of proceedings is one that is mere irregularity. But, non-compliance with commencement is fatal as it goes to the competency of the process.
As pointed out earlier the legal consequences prescribed for the two types of non-compliance with the Rules are that for the non-compliance in the course of proceeding is mere irregularity. While the consequence of non-compliance with commencement shall nullify the proceedings.
In the case at hand the originating process should not have been accepted by the Registry, but where it is accepted the Practice Direction has provided such accepted process that did not comply with the Practice Direction should be treated by the court as incompetent and same should be struck out.
In the case at hand since the Practice Direction has prescribe the legal effect of a failure to do a particular thing or the legal effect of a particular state of affairs, the effect expressly prescribed by the clear words of the Practice Direction will apply. This position was taken by the Court of Appeal in the case of SYLVESTER & ORS V. OHIAKWU & ORS (2013) LPELR-21882(CA), per Agim JCA (as he then was now JSC), where, the court considered the distinction between non-compliance with rules of court in the course of proceeding and non-compliance in the commencement of an action and came to the conclusion that the later will nullify the process. While the non-compliance in the course of proceedings is mere irregularity that will not vitiate the process or affect the jurisdiction of the court.
The law is well settled that if a proceeding is not initiated in accordance with the due process of law or in compliance with the conditions for its valid initiation, a Court will not have the jurisdiction to entertain it. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 58, which was followed in A.G. LAGOS STATE v. HON. JUSTICE DOLEMU (1989) 6 S.C. (pt. 11) 1.
It is clear to me that, the legislative intention of the maker of the Practice Direction is to nullify process not in compliance with practice Direction I have no choice than to give effect to the said legislative intention in this case. In the circumstance the claimant’s suit having not complied with the Practice Direction 2022 is hereby struck out for being incompetent.
However, the striking out of the claimant’s case will not deprive the claimant from filing a fresh suit in compliance with the rules.
Ruling is entered accordingly.

Sanusi Kado,

Judge.

REPRESENTATION:

Aongoi Godgift Robert, Esq; for the claimant.

Philip Upla, Esq; for the defendant.