Failure to commence suit with valid originating process is a fundamental error — Court Rules

His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court sitting in Abuja has struck out the matter filed by ACADEMIC STAFF OF UNIVERSITY (ASSU) and 112 others against KOGI STATE UNIVERSITY and Kogi State Attorney General for being defective.


The Court held that failure to commence a suit with a valid originating process is a fundamental error as the court do not exercise jurisdiction in futility.


The defendants- KOGI STATE UNIVERSITY and Kogi State Attorney General via application sought for AN ORDER to strike out the case for want of competence and lack of jurisdiction on the ground that sealing of an originating process is a condition precedent to the assumption of jurisdiction by the court and also that the matter having not commenced the action within 3months from the date of the said proscription, that the Claimants action is incompetent and statute barred.


Counsel to the defendants also submitted that each claimant has a distinct and independent cases that Joinder of parties and causes of action should not be allowed urged that the case filed be struck out to enable the parties filed separate cases.

In reply, claimants counsel argued that the provision of Section 2 of the Public officer protection Act is absolutely irrelevant to the case that the proscription of the ACADEMIC STAFF OF UNIVERSITY (ASSU) resulted in the termination of their employment.


Delivering the ruling, the presiding Judge, Hon. Justice Sanusi Kado held that the Provisions of the Public Officers (Protection) Act does not protect act that was done in disregard of the law.

“Consequently failure to commence a suit with a valid originating process is a fundamental error. It goes to the root of the action since the condition precedent for the exercise of the court’s jurisdiction would not have been met to place the suit before the court  to hear and determine the issues in the action.


“The process remains invalid ab initio it cannot commence the action. As court do not exercise jurisdiction in futility.

“Applying the principles of law enunciated in the decisions of the apex Court of the land and those of the Court of Appeal, discussed in this ruling, it will be right to say that the Claimants suit as it is presently constituted is bad for mis-joinder. And I so hold.” Justice Kado Ruled


In all, the court held that the Defendants objection to the competency of the suit on grounds of mis-joinder and absence sealing of the originating process as required by the Rules of the Court succeeds, struck out the matter for being defective.

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