IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISON

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA.....JUDGE

 

THIS MONDAY 20TH DAY OF JULY, 2026          SUIT NO: NICN/LA/230/2024

 

BETWEEN:-

MR. EMEKA OKOLI           --         --         --         CLAIMANT/RESPONDENT

AND

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA….

-         --   --         --         --DEFENDANT/APPLICANT

RULING

By a Notice of Preliminary Objection dated 3rd September, 2024, but filed 5th September, 2024, the Defendant/Applicant seeks for the following reliefs;

1.     An Order striking out the suit for being incompetent and/or for lack of jurisdiction.

2.     An Order striking out this suit for being instituted in the wrong jurisdiction of the National Industrial Court of Nigeria.

And any other order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

There are grounds upon which the application is brought are as follows:

1.The named Defendant, ie Shell Development Company of Nigeria Limited is not a juristic person that can be sued.

2.The Complaint was not accompanied with a valid and competent written statement on oath of all witnesses listed on the List of Witnesses to be called by the Claimant.

3.The Respondent’s suit is not in compliance with Paragraph 2(a) of the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and marking of Exhibits) Practice Directions (No. 1) 2022.

4.The suit does not disclose any cause of action, same being premature and academic.

5.The Respondent’s suit is incompetent for being instituted in the wrong jurisdiction of the National Industrial Court of Nigeria, thereby amounting to forum non-conveniens.

6. In view of the above, this Honourable Court ought to strike out the Respondent’s suit in limine.

And further take notice that at the hearing of this application, the Applicant shall rely on the averments in the Respondent’s processes and the documents in the Court’s record.

The Notice of Preliminary Objection is supported by a five (5) paragraph affidavit deposed to by one Daniel Eyiridua, a Litigation Officer in the Law Firm of Messrs. Templars (Barristers & Solicitors), counsel for the Defendant. Attached to the affidavit are two Exhibits. Accompanying the application is a written address of counsel.

The Claimant/Respondent filed a six (6) paragraph Counter Affidavit deposed to by one Prince Damola Seriki, solicitor to the Claimant, on 10th September, 2024, and accompanied by a written address of counsel.

 

SUBMISSIONS OF DEFENDANT/APPLICANT’S COUNSEL

Applicant’s counsel submitted the following issues for determination to wit;

1.Whether this Honourable Court ought not dismiss/strike out this suit for being an incompetent, thereby robbing this Honourable Court of Jurisdiction?

2.Whether this Honourable Court ought not to strike out this suit on the basis of forum non-conveniens?

Counsel submitted that the manner in which this suit has been instituted by the Respondent has automatically robbed the Honourable Court of its jurisdiction to entertain same and if at any rate the Court is minded to proceed to hear the suit as is or entertain any other process born out of or connected with this suit, whatever judgment or decision that is reached against the Applicant will be rendered nugatory and unenforceable.

Learned counsel submitted further, that without the jurisdiction of the court to entertain a matter, the matter cannot stand. Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented for its determination. Counsel referred the Court to UTI v. ONOYIWE (1991) 1 SCNJ 25 at page 49; MADUKOLU v. NKEMDILIM (1962) 1 All NLR (PT.4) 581 and OKONKWO v. OKONKWO [2010] 14 NWLR (Pt.1213) p. 228@ 250-251, paras E-A.

Counsel in addition, submitted that the suit is incompetent and that the defendant is a non-juristic person that can be sued. The Respondent’s General Form of Complaint, Statement of Facts and accompanying originating processes; alongside the Respondent’s motion for interlocutory injunction, were served at the offices of SPDC on 30 August, 2024. Counsel contended that upon a brief review of the Respondent’s originating processes by the legal team of The Shell Petroleum Development Company of Nigeria Limited, it was discovered that, the Defendant in this suit, is an entity unknown to The Shell Petroleum Development Company of Nigeria Limited. Counsel referred the Court to the case of FAGBOLA v TITILAYO PLAST. IND. Ltd (2005) 2 NWLR (Pt. 909) pg. 1.

Counsel urged the Honourable Court to strike out this suit, so the Respondent may take the necessary steps, subsequently.

It is the submission of counsel that the suit is incompetent one with incompetent Witness Statement on Oath. Counsel submitted that the Claimant’s List of Witnesses dated August 27, 2024 named the Claimant (Emeka Okoli) and Prince Damola Seriki, as the witnesses to be called but the Complaint was not accompanied with a witness statement on oath of the Claimant. Counsel further submitted that Order 3 Rule 9 of the Rules of the Honourable Court is explicit that the Complaint “shall be

Accompanied” by a Written Statements on Oath “of all witnesses listed to be called by the Claimant” It is further submitted that the use of the word “shall” imports a mandatory requirement which must be complied with, failure to do so renders the Complaint incompetent. Counsel referred the Court to the case ONWUAKPA v ONYEAMA (2022) 17 NWLR (Pt. 1858) 97 SC.

Furthermore, counsel submitted that Prince Damola Seriki who deposed to the written statement on oath dated August 28, 2024 purports to be a private lawyer/Solicitor of the Claimant in Nigeria but he is not a party to the contract of employment between the Claimant and the Defendant or SPDC and the facts and beliefs he deposed in his deposition on oath, especially the depositions in paragraphs 4-73 are not based on his personal knowledge and he has not stated the name of his informant and reasonable particulars respecting the time, place and circumstances of the information as required by Section 115 (1), (3), & (4) of the Evidence Act 2011.

It is the submission of counsel that failure to comply with these requirements of the Evidence Act renders the Deposition on Oath of Damola Seriki incompetent, the effect of which is that there is no competent Written Statement on Oath before the court as required by Order 3 Rule 9 of the Rules of the Honourable Court.

Learned counsel submitted that the suit is incompetent for non-compliance with Practice Direction. Counsel contended that in the instant case, Paragraph 2(a) of the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and marking of Exhibits) Practice Directions (No. 1) 2022 (“the Practice Direction”) provides that a Claimant’s Statement of Facts and their Witness Statement on Oath must clearly indicate all the document(s), to be relied upon at the trial of the case and attach same. The attached document(s) must be marked serially in the manner done for originating summons.

Counsel submitted again that Paragraph 2(b) of the Practice Direction further states that the part of the document e.g. paragraph(s), page(s) or part(s) of the document(s) to be so relied upon in the attached document(s) must be concisely referred to and be appropriately marked as to be discernible in terms of the fact(s) being proved. In addition, Paragraphs 2(c) and 2(d) of the Practice Direction state that 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. 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 so and must lay such necessary foundation in the statement of facts and witness statement on oath. Counsel urged the court to strike out the suit for being incompetent.

Counsel posited that the suit is incompetent, for no cause of action or reasonable cause of action. Counsel submitted that the Statement of Facts, the Claimant’s contract of employment and the other frontloaded documents do not disclose any right upon which the Claimants case is founded, nor do they disclose any breach of contract or any infringement on the employment rights of the Claimant by the Defendant. Counsel cited the case of ADEOSUN v JIBESIN, (2001) 11 NWLR (Pt.724) 290 where the court held that:

A cause of action arises on the date when a breach or any step taken would warrant a person who is adversely affected by the act of another to seek redress in court.

More so, counsel submitted that the position of the law is that a claimant’s case would be dismissed against a defendant such as the Applicant in the instant case, unless his claim rests on or is supported by concrete facts that shows or establishes a reasonable cause of action. Counsel referred the Court to the case of EKENG v. POLARIS BANK Ltd (2021) 2 NWLR (P. 1761) 395.

It is the contention of counsel that for a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then demonstrate how the defendant infringed on the claimant’s legal rights or failed to perform its obligation(s) to the claimant for which judicial intervention is required. Counsel cited the case of ANGIYA v. EMMANUEL (2021) LPELR-54207(CA).

It is the submission of counsel that it is clear that to establish a reasonable cause of action, the Respondent’s claim must place facts that if accepted, would be enough to warrant the grant of the reliefs sought. The Respondent in this suit has not set out facts that shows that his employment has been terminated by the SPDC/Applicant. The Respondent has at best stated that the Applicant threatened to terminate his employment without facts to even support the alleged threat. The Respondent has not shown which rights a supposed threat to termination has infringed. Counsel relied on the case of YARE v. NATIONAL SALARIES, WAGES and INCOME COMMISSION (2013) 11 NWLR (PE. 1367) 173.

Learned counsel submitted that based on the facts placed before the court, vide the Statement of facts of the Respondent, the claim of the Respondent as presently constituted, cannot be successfully maintained against the Applicant. This is because, there is no Reasonable cause of action known as threatened termination of employment, as disclosed in the Statement of facts of the Respondent against the Applicant.

Learned counsel submitted on issue two that the Respondent has chosen to institute this suit in the Lagos State Judicial Division of the National Industrial Court of Nigeria, as opposed to the Port Harcourt Judicial Division where SPDC/the Applicant has its head office and runs its full operations. It is the submission of counsel that the doctrine of forum non-conveniens presupposes that two courts in different jurisdictions are seised with jurisdiction over the claims but one party demurs to the jurisdiction of the court on the grounds that it would be more convenient to hear and determine the claims in another court. The Latin term forum non conveniens’ literally denotes ‘an unsuitable court’. Counsel referred the Court to the case of NIGERIAN GENERAL INSURANCE Co. LTD v. ALHAJI Y. OLA ISHOLA BELLO (1994) 1 NWLR pt 319, P 207 at 220.

Counsel urged the Court to strike out the suit or the suit be transferred to the Port Harcourt Judicial Division of this Honourable Court to so the matter can be better redressed.

 

SUBMISSIONS OF CLAIMANT/RESPONDENT’S COUNSEL

Counsel submitted a sole issue for determination to wit:

“Whether this suit is not liable to be struck out on any of the jurisdictional grounds as contended by the Defendant/Applicant”

Learned counsel submitted that the Defendant/Applicant has filed a Notice of Preliminary Objection challenging the Claimant/Respondent's suit before the Honourable Court on several grounds, to wit:

 i. The Juristic Personality of the Defendant;

 i. The Competency of the Witness Statement on oath of Prince Damola Seriki;

iii. The Practice Directions of this Honourable Court;

iv. The Cause of Action; and

v. The Forum of the Suit.

 

Learned counsel submitted that on the Juristic Personality of the Defendant, the Learned Senior Counsel to the Defendant/Applicant has posited between paragraphs 4.5 and 4.9, written submissions to the effect that this suit ought to be struck out on the basis that the Defendant/Applicant as currently constituted on the face of the processes before the Honourable Court is a non-juristic person.

It is the submission of counsel that contrary to what the Counsel for the Defendant had made that it is not correct to say that the Defendant/Applicant herein is not a juristic person known to law. It has been contended on behalf of the Defendant/Applicant that its name was not correctly featured. Counsel submitted that assuming that it is true, can it be said to be a misnomer in law. The question is: was the Defendant/Applicant misled in filing its Memorandum of Appearance and the Notice of Preliminary Objection, acknowledging processes served on it by the Claimant/Respondent or briefing Counsel to enter an appearance for it in Court? Counsel referred the Court to the case of AJADI V. AJIBOLA (2004) 16 NWLR (PT. 898) 79.

Counsel further contended that the Defendant/Applicant, through its Counsel, has entered an appearance in this suit before this Honourable Court and even filed a Preliminary Objection in respect of the matter. It is the submission of counsel that from the Memorandum of Appearance filed on behalf of the Defendant/Applicant by its Counsel, the correct name of the Defendant/Applicant was stated to be “Please enter CONDITIONAL APPEARANCE for The SHELL PETROLEUM DEVELOPMENT COMPANY LIMITED sued as Defendant in this action”,

Counsel argued that it cannot now contend or assert that the omission of the definite article ‘the’ was of such significance as to have misled it or its counsel regarding the identity of the entity referred to as the Defendant in the Claimant/Respondent’s Application.

Furthermore, counsel submitted that the Court would find that the Defendant/Applicant’s Counsel corrected the name of the Defendant/Applicant at the franking of its Notice of Preliminary Objection, thereby waiving the misnomer, and as such estopped from relying upon same to pray for the striking out of this suit.

Counsel to the Defendant/Applicant posited that the defect is such that the Honourable Court cannot consider same a curable misnomer. Counsel cited the case of FAGBOLA v. TITILAYO PLASTIC. IND. LTD (2005) 2 NWLR (Pt. 909) 1.

Contrary to the Defendant/Applicant’s Counsel’s arguments, the circumstances of this suit constitute an incurable misnomer. The omission of the article THE’ from the name of the Defendant does not mislead one as to the identity of the Defendant to any degree as the name of the Receiver Manager may have misled one in FABGOLA v. TITLAYO PLASTIC IND. LTD. (supra). Counsel referred the Court to the case of REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG. V. NAMA (2014) LPELR-22372 (SC) 21 in which the

Apex Court aptly posited as follows:

“Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a Writ of Summons and could not have been misled or have any real doubt or misgiving as to the identity of the person sued or being sued, then there can be no problem of mistaken identity to justify the striking out of the action”

 

It is the submission of counsel that the name of the Defendant on the General Complaint Form and other processes being ‘SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED’ and not “THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED amount to a misnomer which should not warrant a striking out Order but rather can be corrected by this Honourable Court. Counsel relied on the case of UBA PLC v. GOSTAR INVESTMENT CO. LTD (2018) LPELR-44886(CA).

Counsel submitted that the Defendant/Applicant is a juristic person. Counsel referred the Court to the case of ENGINEER EMMANUEL CHUKWUEMEKA UNIVERSITY TEACHING HOSPITAL (2018) LPELR- 43781(CA). it is the submission of counsel that in the light of the foregoing, this suit is not liable to be struck out for curable misnomer.

 

Competency of the witness statement on oaths:

Learned counsel submitted further that on the Competency of the Witness Statement on Oath of Prince Damola Seriki, the Learned Senior Counsel for the Defendant/Applicant has made heavy weather on the Witness Statement on Oath deposed to by Prince Damola Seriki, the Claimant’s Private lawyer and solicitor, while simultaneously highlighting the absence of the Claimant’s own Witness Statement on Oath.  Counsel submitted that the arguments advanced in paragraphs 4.10 to 4.12 of the Written Address accompanying the Defendant/Applicant’s Notice of Preliminary Objection suggest that, as a result, there is currently no competent Witness Statement on Oath before the Honourable Court.

It is the contention of counsel that these arguments are fundamentally flawed. With regard to the absence of the Claimant’s own Witness Statement on Oath, it is well-established law that the Court can still consider a suit, even where a witness statement has not been frontloaded, and this omission does not automatically render the Claimant’s suit unsustainable. Counsel contended that should the Honourable Court, however, take a contrary view, then the Witness Statement on Oath of a single witness, such as that of Prince Damola Seriki, is sufficient to support and sustain the Claimant’s claims.

It is the submission of counsel that there is no legal requirement for every listed witness to have their Witness Statement on Oath frontloaded at the initial stage for the action to remain competent.

Learned counsel submitted that regarding the Witness Statement on Oath of Prince Damola Seriki, it is pertinent to note that, as the Claimant’s private lawyer and solicitor, he is well acquainted with both the personal and business affairs of his client. In this capacity, he is uniquely positioned to depose to the matters contained within his Witness Statement on Oath, given his extensive knowledge and understanding of the facts relevant to the Claimant’s case. Prince Damola Seriki who deposed to the written statement on oath for the Claimant stated in paragraph 3 of his statement on oath that he deposed from facts within his personal knowledge and which came to him in the course of his duties.

Counsel relied on the provisions of Section 115(1) of the Evidence Act,2011 (as amended) where it provides as follows:

“Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or information which he believes to be true”

It is the submission of counsel that from the above provisions of Evidence Act, it is clear that the law allows a deponent to depose to an affidavit either from his own personal knowledge or from information which he believes to be true. Counsel submitted that in the instant case, the deponent (Prince Damola Seriki) has clearly stated that he is quite familiar with the facts of this case being the lawyer and solicitor as a result of his duties to the Claimant and hence the facts he deposed are within his personal knowledge. Counsel further submitted that this suit cannot be struck out on the basis of an alleged lack of a competent Witness Statement on Oath. The presence of a single competent Witness Statement is adequate to maintain the Claimant’s case before the Honourable Court

Practice Direction of the Court:

It is the contention of counsel that the Practice Directions of this Honourable Court, contrary to written submissions of the Learned Senior Counsel to the Defendant/Applicant at paragraphs 4.13 – 4.17 of the Written Address accompanying the Defendant/Applicant’s Notice of Preliminary Objection, the Claimant’s Statement Facts and Witness Statement on oath are in full compliance with Practice Directions (No. 1) 2022. The Defendant/Applicant’s contention that the suit be struck out for non-compliance is misconceived.

Counsel contended that the documents to be relied upon by the Claimants were given sufficient foundation at the paragraphs of the Statement of Facts and Witness Statement of Oath wherein they were pleaded. Furthermore, every document frontloaded was labelled and marked in the manner and form as stipulated in the Practice Directions. Furthermore, paragraph 69 of the claimant’s statement of fact explicitly states that the Claimant shall file original copies of all documents to be relied upon available at the trial of this suit. Counsel further contended that the  argument that this suit should be struck out on the basis of non-compliance with the Practice Directions goes to no issue and should be accordingly discountenanced.

Lack of cause of action:

It is the submission of counsel that on the Cause of Action, in respect of the arguments canvassed at paragraphs 4.18-4.27 that the Claimant’s suit discloses no actionable cause of action, counsel submitted that the said arguments do not countenance the particular circumstances of this case. Counsel submitted that contrary to the arguments posited by the Learned Senior Counsel to the Defendant/Applicant, a cause of action accrues when a legal obligation is threatened and/or is on the verge of being threatened. The line of reasoning at paragraphs 4.18-4.27 of the Applicant’s Written Address are dangerous as they presuppose the accrual of a cause of action to a Claimant/Plaintiff only at a time when a wrong has been completed.

Counsel contended that contrary that a cause of action can accrue in anticipation of an immediate threat, especially one of this nature that directly affects the life of the Claimant, the Statement of facts presently before the Honourable Court discloses an actionable cause of action upon which this suit can be maintained. Counsel referred the Court to the case of CHEVRON (NIG) LTD V. LONESTRAR DRILLING (2007) LPELR-842 (SC)

It is the submission of counsel that the factual situation/combination of facts in this case is that the Claimant is currently an employee of the Defendant who is undergoing treatment for a terminal ailment in the United Kingdom as a recipient of the benefits that accrue to him by virtue of his status as an employee of the Defendant. The Defendant has mandated the return of the Claimant in full awareness the medical condition of the Claimant. The Claimant’s cause of action accrued to him on the day he received the directive from the Defendant.

Further to this, counsel submitted that it is pertinent to note that the Claimant is not fit to resume his duties and this much has been made clear in the medical reports that accompany the Statement of Facts and Witness Statement on Oath. Counsel submitted that the Defendant’s directive mandating the Claimant’s resumption on the 10th of September 2024 represents a threat to the Claimant’s wellbeing and same represents an actionable cause of action upon which this Honourable Court can predicate its jurisdiction. Counsel referred the Court to the case of FGN & ORS v. ZEBRA ENERGY LTD (2002) LPELR-3 172 (SC).

Learned counsel submitted that by filing this action, the Claimant has merely chosen to exercise his option not to accept the breach. Counsel also referred to the reliefs in the Statement of Facts. It is the submission of counsel that the Claimant has disclosed sufficient cause of action to sustain this suit.

Forum of the suit:

Counsel argued that on the Forum of the Suit, in addressing arguments canvassed at paragraphs 5.1 – 5.4 in support of the Applicant’s second issue, counsel submitted that the territorial jurisdiction of the National Industrial court is such that any action to which it has jurisdiction can be maintained at any of its various judicial divisions.  Counsel cited the case of ANAKPE & ANOR v. A. G. FEDERATION (2018) LPELR-44620(CA).

It is the submission of counsel that the Defendant/Applicant cannot sustain a plea of forum non conveniens as the current Forum is convenient to all the parties. The suit was filed in the Lagos Judicial Division of the National Industrial Court for reasons of administrative convenience, particularly considering that the Defendant maintains an office and conducts substantial business in Lagos. The Defendant/Applicant instructed the Claimant/Applicant to resume from its Lagos Office. Counsel referred to the emails attached to the Originating Form of General Complaint.

Counsel therefore submitted that the choice of venue does not pose any hindrance or inconvenience to the Defendant or its Counsel. Counsel referred the Court to Order 2 rule 1(1) of the National Industrial Court (Civil Procedure) Rules, 2017 wherein it provides thus:

“subject to the provisions of the Act of transfer of suit, and originating process in respect of a matter in which the court has jurisdiction shall be filed in any registry of the court nearest to where the defendant or respondent resides or has presence or in which the Defendant or Respondent carries on business”.

It is the submission of counsel that in the instant case, the Defendant/Applicant has not contended that it has no presence or carries on business in Lagos state of Nigeria. It is also not the case of the Defendant/Applicant that it does not have an office in Lagos or that the office at Marina, Lagos, where the originating processes of this suit was served on her does not belong to her.

DECISION OF THE COURT

I have carefully considered the processes filed by the parties, the affidavits, submissions of counsel and the authorities cited. The law is settled that jurisdiction is fundamental to adjudication. Once a Court lacks jurisdiction, the entire proceedings, no matter how well conducted, amount to a nullity. See MADUKOLU v. NKEMDILIM (1962) 1 All NLR 587.

Going by the Notice of Preliminary objection, the Defendant raised several grounds challenging the competence of this suit. Defendant’s counsel on the issue of juristic personality submitted that the originating process discloses the Defendant as “Shell Petroleum Development Company of Nigeria Limited”. The evidence before the Court shows that the incorporated entity known to law is “The Shell Petroleum Development Company of Nigeria Limited”. The entity sued by the Claimant is therefore not the incorporated company known to law.

Let me state from the onset that the law attributes legal personality to natural and duly registered persons. In other words, the law attributes juristic personality that has the capacity to maintain and defend actions in court, to natural persons and artificial persons or institutions. They are known to law as legal persons. The implication is that only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality that can prosecute or defend law suits by that name. See OLU OF WARRI V. ESI (1958) SCNLR 384; AGBONMAGBE BANK V. G. B. OLLIVANT LTD. (1961)2 SCNLR 317; ATAGUBA & CO. V. GURA NIGERIA LTD.(2005) 8 NWLR (PT. 927) 429; MAERSK LINE V. ADDIDE INVESTMENTS LTD. (2002) 11 NWLR (PT. 778) 317; REPTICO S. A. GENEVA V. AFRIBANK NIG PLC. (2013) 14 NWLR (PT. 1373) 172; A.-G., FED. V. ANPP (2003) 18 NWLR (PT. 851) 182; ALHAJI MAILAFIA TRADING AND TRANSPORT CO. LTD. V. VERITAS INSURANCE CO. LTD. (1986) 4 NWLR (PT. 38) 802; ADMINISTRATOR/EXECUTOR, ESTATE OF ABACHA V. EKE-SPIFF (2009) 7 NWLR (PT. 1139) 97; BANK OF BARODA V. IYALABANI COY LTD. (2002) 13 NWLR (PT. 785) 551; RANDLE V. KWARA BREWERIES LTD. (1986) 6 SC 1; CALABAR MUNICIPAL GOVT. V. HONESTY (2022) 7 NWLR (PT.1817) 410, CARLEN (NIG.) LTD. V. UNIJOS [1994] 1 NWLR (PT323) 631.

A suit commenced against a non-juristic person is incompetent and robs the Court of jurisdiction. Juristic personality is a condition precedent for the exercise of jurisdiction. The defect is fundamental and not merely procedural. It is pertinent to note that a suit commenced against a non-juristic person, is incompetent and robs the court of jurisdiction. The applicant has specifically challenged the legal existence of the defendant by the preliminary objection. Upon the said challenge, the burden shifted on to the claimant to place before the court, credible evidence establishing that the defendant as it is, is either an incorporated company or otherwise vested with legal personality. In the instant matter, the claimant has failed to exhibit any certificate of Incorporation, statutory instrument, or other document or other demonstrating that the defendant is a legal person recognised by law. It is trite that proceedings against a non-juristic person are incompetent and liable to be struck. Accordingly, I find that the defendant has not been shown to be a juristic person capable of being sued. Furthermore, Order 3 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 mandatorily requires that a Complaint “shall” be accompanied by written statements on oath of all witnesses intended to be called. Order 3 Rule 9 of the National Industrial Court (civil procedure) Rules 2017 is reproduced below:

 

The Complaint shall be accompanied by:

a. A list of facts establishing the cause of action;

b. A list of witnesses to be called;

c. A written statement on oath of all witnesses listed to be called by the Claimant; and

d. A list and number of copies of documents and other exhibits to be tendered at trial.

The Claimant’s List of Witnesses contains the name of the Claimant and his lawyer/solicitor, Prince Damola Seriki. However, no witness statement on oath of the Claimant was filed together with the originating processes. The word “shall” used in the Rule is held in the palace of interpretation to be “mandatory”. Non-compliance with a mandatory statutory provision therefore, renders the process incompetent. In this context, let me call in aid, the decision of the Supreme Court in AROMOLARAN v AGORO (2014) 18 NWLR Pt 1438 p.153 SC @189  where it was decided that the duty of the court is to interpret the words contained in the statute and not to go outside the clear words in search of an interpretation which is convenient to the court or to the parties in its process of interpreting the statute. In the present application of the rules of this court, I find no difficulty in adhering to the plain meaning of the provision of the Order 3 Rule 9 in favour of the argument canvassed by the counsel for the applicant. I have not also forgotten the decision of OGUNDARE (JSC) in the Supreme Court case of EZEKWESILE v AGBOPUONWU (2003) 9 NWLR Pt 825 p.337 where the Learned Jurist maintained that If the rules of court provide for a format or a particular way of commencement of action, a party is bound to follow it. See in particular @ pp 38-39, paras G-A. Moreso, it was reemphasised by the Court of Appeal in C.O.P ABIA STATE & ORS v OKARA & ORS (2014) LPELR-23532 CA that Where the rules of court prescribe the method for doing anything, that method must be strictly followed, otherwise any step taken in respect of the suit amounts to a nullity.

Additionally, the witness statement on oath of Prince Damola Seriki is fundamentally defective. The deponent is not a party to the employment relationship and several paragraphs of the deposition contain matters outside his personal knowledge without disclosure of the source of information as required under Section 115(3) and (4) of the Evidence Act 2011. The consequence thereof, is that there is no competent witness statement on oath supporting the Complaint. A close reading and understanding of Section 115 (1)-(4) of the Evidence Act surely reveals that there must be a substantial compliance with the said section. If the deponent has disclosed the source of the facts which he believes to be true, thereby setting out the circumstances forming the grounds of his belief, then, it could be take that the section is complied with. In the present case, it is not so disclosed in my considered view.

I also find merit in the Defendant’s contention that the Claimant failed to comply with Paragraph 2 of the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and Marking of Exhibits) Practice Directions No. 1 of 2022. Compliance with the Practice Directions is mandatory and failure to comply renders the originating processes defective. That is the effect of non-compliance with the provisions of the Practice Direction.

On whether the suit discloses a reasonable cause of action, the Statement of Facts reveal that the Claimant remains an employee of the Defendant. There is no allegation that his employment has been terminated, suspended or otherwise adversely affected. The gravamen of the Claimant’s complaint is a perceived threat of future termination. The law is settled that a cause of action arises upon the occurrence of facts giving rise to an enforceable right. Courts do not adjudicate on speculative, hypothetical or academic disputes. To my mind, the Claimant has failed to establish any completed breach of contract or infringement of any legally enforceable right. The action is therefore premature and discloses no reasonable cause of action. I so hold.

Finally, on the issue of forum non conveniens, the evidence revealed from facts before the Court show that the Defendant’s principal place of business and operational headquarters are situated in Port Harcourt, Rivers State. The substantial facts giving rise to the dispute are connected with that jurisdiction. I am not persuaded that the Port Harcourt Judicial Division would be the more appropriate forum for the determination of the dispute because, the territorial jurisdiction of this court is the entire country of Nigeria. The provisions of the Sheriff and Civil Process Act which tend to lure the mind of the counsel for the applicant in that direction does not apply to this court. For the avoidance of doubt, this court by the provisions of Order 7 Rules 15 (1) provides that “The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria, and is only divided by the President of the court into Judicial Divisions or Registries for adjudicatory and administrative convenience”. Sub rule 2 provides that “ALL originating processes or other court processes filed by any party before the court shall be served on any party in any part of the FEDERATION without leave of court” Cases filed in the court are transferred subject to the prerogative administrative powers of the Honourable President of the court. Therefore, filing the case in Lagos Division of the Court does not matter in any way and it alone cannot render the suit incompetent.

 

Having found that the action was commenced against a non-juristic entity, that there is no competent witness statement on oath supporting the Complaint, that the originating processes failed to comply with the applicable paragraphs of the Practice Directions, in particular, 3 (2) (a), (b), (c) because and 3 (3) (b) (i). It is plain that once objection is raised and the court confirms that the originating processes (such as the statement of facts or witness statements on oath) failed to properly index, mark or reference the frontloaded documents, the judge has no choice but to treat the process as incompetent. More so, the instant suit discloses no reasonable cause of action, this Court therefore, lacks competence to entertain the suit.

In my final consideration of this Preliminary Objection filed by the defendant, I find merit in it. The claimant has not complied with the stipulations of the Practice Direction on marking of documents which noncompliance is fatal to the suit and robes the court of the jurisdiction to adjudicate on it in addition to all other weaknesses enumerated herein above. By paragraph 3 (3) (b) (i) of the Practice Direction, the proper order to make, in the circumstances is striking out. Accordingly, the Notice of Preliminary Objection succeeds. This suit is incompetent, and is hereby struck out for want of jurisdiction. I invoke the provisions of Order 55 Rules 1-5 which empowers this court to award cost and in this regard, cost of N100,000.00 is awarded in favour of the defendant/ applicant, payable within 14 days and evidence of payment be filed in the case file by the Claimant/ Respondent’s counsel. Ruling is entered accordingly.

 

 

 

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HON. JUSTICE S. A. YELWA

(JUDGE)

APPEARANCE:

D.O. APATA (MS)                                                               --         FOR THE CLAIMANT

I.O. UWAIFO WITH CHAIMAKA EMEKA EMAN     --         FOR THE DEFENDANT