OMANG v. NSA
(2020)LCN/15263(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, May 19, 2020
CA/C/242/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Philomena Mbua Ekpe Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Between
AKWAJI HENRY OMANG APPELANT(S)
And
SYLVESTER EFFEFIOM NSA RESPONDENT(S)
RATIO
DEFINITION OF A CAUSE OF ACTION
A cause of action in law means:
a. A cause of complaint;
b. A civil right or obligation for determination by a Court of law;
c. A dispute in respect of which a Court of law is entitled to invoke in judicial powers to determine;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
d. Consequent damages,
e. Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to be proved;
f. All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person;
g. It is a factual situation which enables one person to obtain a remedy from another in Court in respect of injury.
See A-G Federation vs. Abubakar (2007) 10 NWLR (pt. 1041) 1 SC, S.P.D.C vs. X.M. Federal Ltd. (2006) ALL FWLR (pt. 339) 822 SC. A-G Federation vs. ANPP (2003) 12 SCNJ 67 (2004) FWLR (pt. 190) 1458 SC. Nwokedi vs. Egbe (2005) 9 NWLR (pt. 930) 293 Mobil Oil Plc vs. D.E.N.R. Ltd. (2004) 1 NWLR (pt. 853) 142.
A cause of action is also the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination facts, which gives rise to a right to sue and it consists of two elements, viz, the wrongful act of the Defendant, which gives the Plaintiff his cause of complaint; and the consequent damage. See Adesokan vs. Adegorolu (1997) 3 NWLR (pt. 493) 261 SC, Ajayi vs. Mil Adm Ondo State (1997) 5 NWLR (pt. 504) 237 SC, Rhein Mass Und SC GMBH vs. Rivway Lines Ltd. (1998) 5 NWLR (pt. 549) 265 SC, Emiator vs. Nigerian Army (1999) 12 NWLR (pt. 631) 362 SC, Agbanelo vs. Union Bank of Nigeria Ltd. (2000) 4 SC (pt. 1) 233, Oduntan vs. Akibu (2000) 7 SC (part 11) 106, Messers NV Scheep vs. The M.V. “S. Araz” (2000) 12 SC (part 1) 164. PER OWOADE, J.C.A.
DUTY OF THE COURT IN DETERMINING WHETHER OR NOT A SUIT DISCLOSES A CAUSE OF ACTION
It is also important to note that in order to determine whether or not a suit discloses a cause of action and the relief sought, the Courts are required to examine the averment in the pleadings and see if they disclose cause of action. Once the statement of claim raises some issues of law or fact calling for determination by the Court, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. Thus, a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the Defendant is required to meet.
SeeIdachaba vs. Ilona(2007) 6 NWLR (pt. 1030) 277 Nicon Ins. Corp. vs. Olowofoyeku (2006) 5 NWLR (pt. 973) 244, Mobil Oil Plc. vs. D.E.N.R. Ltd. (2004) 1 NWLR (pt.853) 142. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Ruling of Honourable Justice M. M. Esowe of the Calabar Judicial Division of the National Industrial Court delivered on 9th day of May, 2019.
The Respondent/Claimant in the Court and the Appellant/Defendant are both employees of the Niger Delta Development Commission (NDDC).
The Respondent/Claimant was employed and attached to the Appellant/Respondent as Special Assistant “to the Cross River State representative on the governing board of the NDDC.
The Respondent as Claimant brought this suit by way of complaint in the National Industrial Court alleging particularly in paragraph 7 of the statement of fact inter alia that “…he was informed by the Defendant that his salaries will be about N800,000 (Eight Hundred Thousand) and the Claimant will be required to relinquish N300,000 (Three Hundred Thousand) only every month to enable him assist some people and that the Claimant has no say to that as that is the practice over time.”
And, indeed from paragraphs 8 – 41 of the statement of fact, the Respondent/Claimant alleged further:
8. The Defendant who is the direct boss/principal of the claimant influenced the claimant towards accepting same and went further to threaten that if he does not adhere to same, he will personally ensure that he lose the appointment and make the service unbearable for him and that there are so many people who are queuing up to settle for less. The deductions according to Defendant were as it relates only to the claimants monthly salaries alone.
9. The claimant who was threatened to submission and without option at first, afraid of the Defendant’s privileged position over him had no option when he collected his first salary on the 24th day of January, 2017 which was a total of N2,215,846.19 (Two Million, Two Hundred and Fifteen Thousand, Eight Hundred and Forty-Six Naira, Nineteen Kobo) only to withdraw by cheque and pay on demand to the Defendant the total sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira) on the 30th day of January, 2017 as clearly shown in the Claimant’s UBA account statement herein annexed.
10. The claimant was paid furniture and rent allowance of N4,686,713.81 (Four Million, Six Hundred and Eighty-Six Thousand, Seven Hundred and Thirteen Naira, Eighty-One Kobo) only on the 2nd of February, 2017 as shown in his account statement, the Defendant called him to know if the claimant has received alert, he responded in the affirmative and the Defendant immediately demanded and directed the claimant to pay N500,000 (Five Hundred Thousand Naira) only each to the following 4 persons:
i. Mr. Increase Abasi (paid through his bank over the counter)
ii. Mr. Umo Antigha Etim (through transfer)
iii. Mr. Ekpenyong Asuquo (through transfer)
iv. Mr. Cole (through transfer)
11. The Claimant was shocked at this development and told the Defendant that he thought it was going to end with the salaries as he said, the Defendant ordered that he should pay the aforesaid sum which after much pressure and threats of relief of duty/employment, the claimant did as variously reflected in his account statement of 3rd February, 2017 herein annexed totally N2,000,000.00 (Two Million Naria) only, extorted and unlawfully demanded and collected from the claimant.
12. The Claimant was paid the sum of N887,727.56 (Eight Hundred and Eight-Seven Thousand, Seven Hundred and Twenty-Seven Naira, Fifty-Six Kobo.) only being his basic salary on the 27th February, 2017 and on the same date, claimants recreation allowance of N600,000 (Six Hundred Thousand Naira) was paid as reflected in the account statement of the claimant herein annexed, but the Defendant in further perpetration of his unlawful acts and conduct further demanded and directed that the claimant should pay the sum of N650,000 only to Mr. Charles Effefiom Bassey’s account, (N350,000.00 from salary and N300,000.00 from recreation allowance) for onward transmission to him, which that claimant did on the 28th February, 2017 as shown in his statement of account herein annexed.
13. On March 27, 2017, salaries of N892,562.98 was paid and on the strict instructions of the Defendant and unlawful demand, the claimant paid further the sum of N350,000 to the Defendant’s personal assistant, all in abuse of power and misuse of his privilege position to intimidate, harass and extort monies from the claimant.
14. The claimant was further paid his April salaries of N892,490.62 only on the 21st day of April, 2017 and the sum of N350,000 was again unlawfully demanded by the Defendant and paid to him through his personal assistant, Charles Effiom Bassey on the 25th day of April, 2017 as shown in the Defendant’s statement of account.
15. On the 2nd day of May, 2017, the sum of N6,355,000.00 was paid to the claimant as medical allowance, the Defendant called the claimant around 6.am unlawfully demanding for the sum of N3,150,000.00 and directing that it should be paid to his First Bank account number: 3051533907 and account name: Nsa Sylvester Effefiom which the claimant transferred to the Defendant as shown in his statement of account herein pleaded.
16. The Defendant sent his account number where the sum of N3,150,000 was unlawfully demanded and paid into through a text message and the said message is herein pleaded and shall be relied upon during trial.
17. The claimant in protest against the continuous demands and abuse of powers of the Defendant as it relates to his salaries and allowances called the Honourable Minister of Niger Delta Affairs to complain and sought his intervention and since he didn’t pick up his call as at the material time, the claimant sent him a text message and a copy of the text message is herein pleaded and shall be relied upon during trial.
18. On 26th May, 2017, the claimant was paid the salaries of N893,490.61 and the sum of N350,000.00 was paid to the Defendant through his personal assistant account on the strict instructions and demand of the Defendant as usual to wit: on the 26th July, 2017, he paid N200,000.00 and N150,000.00 on 30th May, 2017.
19. The Claimant was paid the sum of N1,120,000.00 on the 30th day of May, 2017 being the “28 days allowance” and the Defendant who has sworn never to stop further compelled the claimant to pay the sum of N400,000.00 to him through his personal assistant account which the claimant did on the 31st day of May, 2017.
20. The claimant was paid his June salary N893,490.62 only on 28th day of June, 2017 and as usual, the Defendant compelled him unlawfully to pay the sum of N270,000.00 to him through the Defendant’s personal assistant and also pay the sum of N10,000.00 each for five (5) other persons totaling N50,000.00 only and the sum N10,000.00 only to Mr. Ikani N20,000.00 to Mr. Godwin Igbe Otom.
21. The Claimant’s plea to the Defendant fell on deaf ears even when the July salaries of N893,490.62 was paid on the 27th July, 2017, the Defendant still unlawfully compelled the claimant to pay to him the sum of N350,000.00 only through his personal assistant First Bank account number… on the 28th July, 2017 and 31st July, 2017 as shown in his account statement.
22. On the 3rd August, 2017, the sum of N4,840,000 only was paid as “2016 medical allowance” of the claimant as shown in his account statement, the Defendant persisted and unlawfully demanded for the sum of N2,042,000.00 only to be paid to him from the claimant’s after much threat and pressure to set machineries in place to create grounds to terminate the claimant’s employment if he refuses and not considering his abuse of power, the claimant was left with no choice but to pay the aforesaid sum on the 4th August, 2017 to the Defendant through bank transfer as clearly shown in the claimant’s statement of account herein pleaded.
23. On the 11th day of August, 2017, the claimant was paid his “Education subsidy” of N1,000,000.00 and the Defendant unlawfully demanded and collected the sum of N500,000.00 only on three times mobile transfer of N200,000, N200,000 and N100,000 as shown on the claimant’s account statement herein pleaded.
24. The claimant’s August salary of N893,490.63 was paid on the 22nd day of August, 2017, the Defendant as usual demanded for N320,000 only and directed that the balance of N30,000 be paid to one Mr. Ikani and Otom and this the claimant did with plea with the Defendant who failed to listen and consider same.
25. The claimant was paid September salaries of N892,490.62 on the 28th August, 2017, the Defendant demanded that the claimant pay to him the sum of N270, 000 only through his personal assistant’s account and also pay the sum of N80,000.00 to 5 “chapter APC chairmen of the Northern Senatorial District, Cross River State” and the remaining N30, 000.00 to the Defendant’s friend Mr. Ikani and Otom oblivious and outside the claimants term of employment.
26. October salary of N892,490.62 was paid to the claimant on the 26th October, 2017 and the Defendant further demanded unlawfully for the sum of N320,000.00 to be transferred to Charles Effiom Bassey his personal assistant to be sent to him and the sum of N30,000.00 for his friend, Mr. Ikani and Otom which the claimant did as shown in his account statement herein pleaded and similarly occurred on the 1st November, 2017 when the claimant was paid “Energy and productivity allowance” of N1,375,850.49, the Defendant ordered him to transfer the sum of N600,000 only to him immediately of which the claimant pleaded for it to be the next date since his mobile app application could not transfer above N200,000.00 only and he sure did transfer the said funds to the Defendant the next day being 2nd November, 2017 as shown in the claimant’s account statement to the annoyance and continuous embarrassment of the claimant.
27. The claimant is a staff of the NDDC and not a mere casual worker of the Defendant who has no iota of right whatsoever to demand and collect the aforesaid sums from the claimant.
28. The claimant’s salary of November was paid on the 23rd November, 2017 on the 24th of November the Defendant again unlawfully asked and directed that the claimant pay the sum of N320,000 only to him through his personal assistant and then, the remaining N30,000.00 to his friend and Otom as usual, which the claimant did. Same also occurred on December 4, 2017 when the claimant was paid “end of year bonus’ of N1,464,551.83 and the Defendant directed that the sum of N700,000.00 only be sent to his Personal Assistant’s account from the claimant’s allowance which he did on 6th December, 2017 as captured in the account statement and N320,000.00 only was also transferred to the Defendant’s Personal Assistant account on strict instructions of the Defendant from the claimant’s December salary paid on 14th December, 2017.
29. The incessant abuse of powers, misuse of privilege position, corrupt practices, unlawful acts of the Defendant became unbearable, necessitating the claimant to report the Defendant to the Honourable Minister of Niger Delta Affairs, Usani Uguru Usani through a phone call of 24th December, 2017 expressing his displeasure and frustration over the incessant demands of the Defendant, upon which the claimant also called the Defendant to express his displeasure and pleaded for a better condition of service as the new year approached. The Defendant complained that he was unhappy that I had told some persons about his activities and that he shall no longer take any money from me in the New Year 2018.
30. The Defendant due to this report and call has sworn to deal with the claimant and ensure that he loses the job or employment for no just cause.
31. Recently, there are internal memos secretly being taken from one office to another with the intention to terminate the claimant’s appointment (solely sponsored and orchestrated by the Defendant) to replace the claimant with one Martin Achadu who has reliably settles for ¼ of all proceeds from his salaries and allowances.
32. That this secret actions are taken out of malice and in bad faith by the Defendant who is setting these machineries in motion without giving the claimant fair hearing or following due process of law even when the contract of service of the complainant’s employment is with statutory flavor, hence this action.
33. The Defendant is not being only vengeful but seeks to terminate the claimant’s employment unlawfully to grab his upcoming medical and other allowances into his private pocket.
- The Defendant will not stop in his illegal quest if not retrained (sic) restrained by the Honourable Court and ordered to account and or refund the aforesaid unlawful proceeds already made from the claimant.
35. The text message communications between the claimant and the Defendant’s Personal Assistant Charles Effiom Bassey as it relates to the unlawful demands and abuse of office is herein annexed and pleaded.
36. The Claimant is not the only victim of the Defendant as the Personal Assistant’s statements to be produced. Notice is hereby given to the said Charles Effiom Bassey to produce his statement of account from January, 2016 – January, 2018 and the unholy act has also been complained against in the text message discussion between him and the claimant and same is herein pleaded.
37. The newly appointed second Special Assistant to the Defendant Boko Samuel appointed on November, 2017 was paid the sum of N11,800,000.00 only was also ordered by the Defendant to transfer the sum of N10, 800,000.00 only to him and take N1,000,000.00 only sometimes last year and he subsequently takes home from his monthly salary less than N300,000.00 (Three Hundred Thousand Naira) only.
38. The Defendant has been feeding fat from the claimant and others salary/allowances without conscience.
39. The claimant’s pay slip is evident as to who pays him salary and exercises control over him, the said pay slip is herein variously pleaded.
40. The claimant also pleads the following duplicate copy of electronic transfer from tellers of 8th May, 2017, 26th January, 2017, 28th September, 2017, 27th March, 2017, 28th February, 2017, 24th November, 2017, 22nd August, 2017, 6th January, 2017 showing illegal demand transfer and collections of his funds by the Defendant and transfer of aforesaid sum on the Defendants instructions to the other parties all to further complement and corroborate the account statements.
41. The Defendant greedy disposition is overwhelming as he has chosen to frustrate the claimant amidst his wealth unlawfully acquired and it is pertinent that the Court grant the claimant’s prayers to avoid continuous damage hence this action.
The Respondent/Claimant then claimed as follows:
1. A DECLARATION OF COURT that the total sum of N4,150,000 (Four Million, One Hundred and Fifty Thousand Naira) only unlawfully demanded and collected from the claimant basic salaries by the Defendant spanning from December, 2016 to December, 2017 is unlawful, abuse of powers, corrupt and amounts to a violent assault on the claimant employment rights.
2. A DECLARATION OF COURT that the total sum of N5,192,000 (Five Million, One Hundred and Ninety-Two Thousand Naira) only, demanded and collected from the claimant’s medical allowance of 2016 and 2017 by the Defendant is unlawful, abuse of powers, reeks of corruption and prejudicial to the rights of the claimant.
3. A DECLARATION OF COURT that the total sum of N2,000,000 (Two Million Naira) only unlawful demanded, asked for and collected under threat and undue influence form the claimant’s 2017 rent/furniture allowance by the Defendant is unlawful, corrupt, highly reprehensible and a gross violation of the public service Rules and other related Acts.
4. A DECLARATION OF COURT that the total of N500,000 (Five Hundred Thousand Naira) only, demanded, asked for and collected by the Defendant from the claimant’s “education subsidy” all as shown in the statement of account, an act outside the terms of employment are unlawful, corrupt practices and amounts to abuse of powers and contrary to government policy.
5. A DECLARATION OF COURT that the sum of N400,000 (Four Hundred Thousand Naira) being part of “28 days allowance” and N300,000 (Three Hundred Thousand Naira) being part of recreation allowance of the claimant and N600,000 (Six Hundred Thousand Naira) being part of the claimant’s productivity/Energy allowance and N700,000 (Seven Hundred Thousand Naira) only, being part of the claimant’s “end of the year bonus”, variously shown in the claimant’s statement of account and transferred/paid to the Defendant after unlawful demand and collected is unlawful and amounts to abuse of public powers/office and breach of the Rights of the claimant as an employee.
6. AN ORDER OF ACCOUNT for all the unlawful proceeds, gains/benefits and interest asked for, demanded and collected from the claimant variously shown in the claimant statement of account and some transferred through the Defendant’s Personal Assistant Charles Effiom Bassey amount to total sum of N13,842,000 (Thirteen Million, Eight Hundred and Forty-Two Thousand Naira) only.
7. AN ORDER OF COURT asking the Defendant to refund with immediate effect the sum of N13,842,000 (Thirteen Million, Eight Hundred and Forty-Two Thousand Naira) only unlawfully collected from the claimant’s basic salaries and other allowances as shown in the statement of account.
8. AN ORDER OF COURT restraining the Defendant, his agents, privies, assigns, representatives and all other persons claiming in that behalf from further extortion, unlawful demand, collections of unlawful gains from the claimant.
9. AN ORDER OF INJUNCTION restraining the Defendant, his privies, allies, cohorts, assigns officers in the employment of Niger Delta Development Commission (NDDC) acting for and on the instructions of the Defendant from interfering, victimization, malicious act termination of the claimant’s employment without due process of the law and compliance with the statutes that regulates the claimant’s employment.
10. AN ORDER OF COURT rendering nugatory, void and of no effect any pending actions, letters, memo, administrative actions to conceal the fraud and unlawful gain and above all depriving the claimant of his statutory Rights to fair hearing and employment Rights as result of this action, inclusive of upcoming allowances and entitlement.
11. GENERAL DAMAGES of N150,000,000 (One Hundred and Fifty Thousand Naira) only for the injury/damages caused the claimant as a result of the Defendant’s action.
12. Cost of action.
On 6th April, 2018, the Appellant/Defendant entered Memorandum of Appearance to the Respondent’s/Claimant’s suit and on the same day filed a Notice of Preliminary objection praying the Court below to dismiss or strike out the suit against the Defendant/Appellant in limine for lack of cause action and jurisdiction and also to strike out the complaint and all other originating processes filed in this case for improper service.
The grounds upon which the Appellant Defendant/Applicant brought the preliminary objection are as follows:
1. That there is no employer – employee relationship between the claimant and the Defendant in this suit.
2. That the claimant has not established any cause of action against the Defendant.
- That this Court only has jurisdiction to entertain cases relating to employment and labour.
4. That the originating processes in this case was not served on the Defendant personally as required by law.
Parties filed, exchanged affidavit evidence and written addresses. In his further reply on point of law, the Appellant/Defendant for the first time raised the issue that the process signed by Ozinko O. Ozinko whose name is not on the roll of Legal Practitioners in Nigeria, should be struck out for being incompetent. He added that the undated photocopy of Chronicle Newspaper which is not certified is not a credible evidence to establish that Ozinko O. Ozinko is one and the same person with Okpan Ozinko Okpan. That there is no affidavit or notification to the Supreme Court that the name as contained on the roll should be changed or has been changed.
The learned trial judge in his Ruling considered each item of objection both formally and informally raised by the Appellant/Defendant, overruled the Appellant’s/Defendant’s Preliminary objection and assumed jurisdiction in the case.
Aggrieved with the said ruling, the Appellant filed a Notice of Appeal containing three (3) grounds of Appeal in this Court on May, 2019.
Appellant’s Brief of Argument was filed on 23rd July, 2019. It is settled by William Ballantyne Esq.,
Respondent’s Brief of Argument was filed on 22nd August, 2019 it is settled by Ozonko O. Ozonko Esq.,
Learned Counsel for the Appellant nominated two issues for determination. They are:
1. Whether the lower Court was right to have assumed jurisdiction over this suit considering the following issues that rob the lower Court of its jurisdiction.
a. The suit discloses no cause of action against the Appellant.
b. The originating process was not properly served on the Appellant. (Distilled from ground one (1) and two (2) of the Grounds of Appeal.
2. Whether the lower Court was right to have relied on documents and processes emanating from a legal practitioner without the requisite Nigerian Bar Association’s seal and stamp affixed on them.
Learned Counsel for the Respondent similarly suggested two issues for determination of the appeal.
They are:
1. Whether the suit discloses a reasonable cause of action to warrant the invocation of the jurisdiction of the trial Court and whether the trial Court was right to have assumed jurisdiction over the complaint before it. (Distilled from grounds 1 and 2 of the Notice of Appeal.
2. Whether the lower Court was right to have overruled the Appellant’s objection to the effect that the documents and processes emanating from the Respondent’s counsel were invalid on the ground that there were purportedly without the requisite Nigerian Bar Association’s seal and stamp affixed on them (Distilled from ground 3 of the Notice of Appeal).
On the first leg of Appellant’s issue No. 1, Learned Counsel for the Appellant submitted that a cursory look or perusal of the provision of Section 254C of the 1999 Constitution of the Federal Republic of Nigeria, as amended, one will discover that the jurisdiction conferred on the Court is to entertain labour related matters and dispute emanating from employment or employer/employee relationship. He added referring to the case of KOREA NAT. OIL CORP. VS. O. P. S. (NIG.) LTD. (2018) 2 NWLR (pt. 1604) Sc pg 394 at 474 that it is the Plaintiff claim that determined whether a Court has jurisdiction to entertain a matter in the light of statute(s) containing jurisdiction.
He submitted that from the totality of the averment of facts contained in the statement of fact, there is no place the complaint of the Respondent stated or established that the latter is or was his employer or that there is/was an employer/employee relationship. Hence, the Respondent’s claim did not disclose the requisite facts to enable the Court to assume jurisdiction. That the Respondent rather in his statement of fact has stated severally as shown in paragraphs 1, 3, 4 and 7 et cetra that he was employed and remunerated by the Niger Delta Development Commission, (NDDC) which is not a party in this suit.
He submitted that in the light of the provision of Section 254C of the Constitution as well as averment contained in the statement of the fact, this Court lacks jurisdiction to determine this case as the statement of fact does not establish sufficient nexus between the Respondent and the Appellant to fall within the ambit of issues that the lower Court is vested with jurisdiction to entertain.
He submitted further that the Respondent did not establish any reasonable cause of action in this suit which rob (sic) vests the Court with the jurisdiction to entertain this case contrary to the decision of the lower Court as contained in its ruling dated 9th day of May, 2019 wherein the lower Court held as follows:
“…by virtue of the nature of Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the powers of this Honourable Court covers all kind of disagreements or dispute arising from workplace be it employer – employer, employer – employee or employee – employee, associations, trade, unions etc and I so hold”
(pages 244 of the Record of Appeal)
Appellant’s Counsel referred to the definition of “Cause of Action” through the cases of SIFAX (NIG.) LTD. VS. MIGFO (NIG.) (2016) 7 NWLR (pt. 1510) pg. 10 at 49 and Adesokan vs. Adegorolu (1997) 3 NWLR (p. 493) 261.
He submitted that right the Respondent claims before the lower Court is pertaining to entitlements as an employer including salaries and allowances which he alleged was illegally deducted by the Appellant.
The latter was not the former’s employee and has nothing to do with the former’s entitlement which includes salaries and allowances as there was no employment relationship between them to give rise to such.
He repeated that the Court below was established under the Constitution to entertain matters relating to trade disputes and employment related matters but no other case. The Respondent in his claim never established any reasonable cause of action against the Appellant that is capable of being redressed by the Court.
On the second leg of issue No. 1, learned counsel for the Appellant referred to the cases of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 at 595, NJOEMANA VS. UGBOMA & ANOR. (2014) LPELR – 22494 (CA) to emphasize the importance of service of processes on parties and the relationship between non-service of process and the jurisdiction of the Court.
He submitted that in the instant case, the originating processes were not served personally on the Appellant/Defendant as required by law and there was no order of this Honourable Court for substituted service of same. Therefore, that the service of the originating processes were improper, ineffective and void. He argued that the service of Court processes, especially originating processes is governed by the Sheriff and Civil Processes Act, 56 LFN, 2004. The propriety or otherwise of the service of Court process goes to the issue of fair hearing which is provided for under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
He submitted that the effect of the Sheriff and Civil Process Act and the Constitution is that an originating process be served personally on the Defendant except where there is an order of Court for substituted service. Hence where a Rule of Court as in the Court below provides for services of originating process on any other person other than the party in the suit, that provision is null and void to the extent of its inconsistency with the provisions of the Sheriff and Civil Process Act and the 1999 Constitution of the Federal Republic of Nigeria as amended.
He referred to and reproduced the provision of Order 7 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rule, 2017.
He submitted that the provision of Order 7 Rule 1 (b) – (h),(i) of the National Industrial Court of Nigeria (Civil) Procedure) Rules, 2017 which permits service of an originating process on a person or places other than the Defendant to the suit is an infraction of the Defendant’s right to fair hearing which is constitutionally guaranteed and protected by the 1999 Constitution of the Federal Republic of Nigeria, as amended.
He concluded that the said paragraphs are to the extent as they affect the service of originating process null and void as they are against the spirit of fair hearing and the provisions of the Sheriff and Civil Process Act.
On the first leg of Appellant’ issue No. 1, Learned Counsel for the Respondent submitted that the Respondent/Claimant has a cause of action.
He referred to the cases of OSHOBOJA VS. AMUDA (1992) SCNJ 3170 326 and MOBIL VS. LASEPA (2003) 104 LRCN 240 at 268 where it was held that once the allegations are such that show a real controversy that is capable of leading to the grant of a relief, then a reasonable cause of action has been disclosed in the pleadings.
He submitted that the Respondent/Claimant has a legal right to his full salaries, allowances, welfare and health packages and the threats, unlawful demands, collections and deductions of same, abuse of powers and fiduciary position in gross violation of the Respondent’s/Claimant’s terms of employment and contrary to his statutory rights as dictated by his terms of service cannot go remediless. He referred to the dictum of Oputa JSC in the case of Thomas vs. Olufosoye (1986) 1 NWLR (pt. 18) pg. 673 to say “Ubi Jus ubi remedium” – where there is a right, there is a remedy.
He submitted that as held by the trial Court, Section 254C of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 7 of the National Industrial Court Act 2006 and Section 48 of the Trade Dispute Act Cap. 432 Cap. 18 L.F.N. 2004 donates exclusive jurisdiction to the Court below to entertain the Respondent’s/Claimant’s complaints.
He referred to the case of IDO LOCAL GOVERNMENT VS. HONOURABLE ENIOLA MUSIBAU & ORS. (2019) LPELR – 46941 (CA).
He reminded us that the Respondent has not brought the action for unlawful termination of employment as suggested by the Appellant but for the unlawful acts of the Appellant relating to the unlawful demand and collection of his salaries, health, allowances, welfare, condition of work contrary to the terms of his employment/service and letter of appointment/public service Rules, breach of his employment Rights in the course of his services or employment, abuse of the Appellant’s fiduciary position, as the direct boss of the Respondent who was attached to him in the course of his services or employment.
Learned Counsel for the Respondent referred to the provision of Section 48 of the Trade Dispute Act and the cases of National Union of Road Transport Workers vs. Ogbodo (1998) 2 NWLR (pt. 537) 189, Attorney General, Oyo State vs. Nigeria Labour Congress – Road Transport Employers Association of Nigeria & Ors. Vs. Mr. Olufemi Ajewole & Ors. (2017) LPELR 41271 (CA) per Abiru JCA (pp. 26/28).
He emphasized that the office of the Appellant is recognized by Section 2 (1) of the Niger Delta Development Act LFN 2004. That he is a public servant subject to the public service Rules and that the Respondent is directly under the Appellant and attached to him as stated in his terms of employment. He submitted that the trial judge is entitled to entertain the suit brought in relation to Respondent’s employment rights, interpretation of his terms of service, declaration as to the lawfulness or unlawfulness of demands/deduction of monies from the welfare, health allowances and salaries of the Respondent and conducts inimical to his condition of service.
He reiterated that the subject matter and reliefs sought by the Respondent fall within the exclusive jurisdiction of the Court below. He referred to the cases of Military Administrator of Benue State vs. Abayilo (2001) FWLR (pt. 45) 607, NTC vs. Osifeso (2000) 14 WRN 41, Korea National Oil Corporation vs. O.P.J. (Nig.) Ltd. (2018) 2 NWLR (pt. 1604) pg. 394 (SC). And urged us to uphold the jurisdiction of the Court below on this score.
On the second leg of Appellant’s issue No. 1, Respondent’s Counsel submitted that the Appellant was properly served with the originating process and also hearing Notice in this suit.
He added that the Appellant did not appeal against the finding of fact by the learned trial judge at page 246 of the Record of Appeal that:
“This Court is bound by its records.
From the records of this Court, particularly at page 205, there is an affidavit of service deposed to by the process server of this Honourable Court that service of the complaint in this case was effected on the Defendant at his place of work through the secretary who on refusing to collect the process, the process server dropped the originating process on the Defendant’s secretary’s desk. In the absence of anything to the contrary, this Court finds and holds that in line with Order 7 Rule 1 (16) this Court is satisfied that same is good and proper service on the Defendant.”
He submitted that the Appellant did not avert his mind to the provision of the National Industrial Court (Civil Procedure) Rules 2017 specifically, Order 7 Rule 1 (1) paragraph (C) when he came to the conclusion that the Appellant/Defendant was not served and no order for substituted service was made. Respondent’s counsel referred to the provision of Section 315 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) on existing laws and the cases of Federal Republic of Nigeria vs. T. A. Dairo & Ors. (2015) LPELR – 24303 (SC) Abubakar vs. Yar’adua 51 (SC) to say that the apex Court has sanctioned the strength of the Rules of Court and enjoined that rules of Court must be obeyed.
He added that service of Court process by personal service has been made wider by Order 7 Rule 1 (2) (14) (15) and (16) of the National Industrial Court (Civil Procedure) Rules.
He submitted that there is nothing in the provision of Order 7 Rule (1) that is irregular and or inconsistent with either the Sheriff and Civil Process Act or the Constitution of the Federal Republic of Nigeria 1999 (as amended) as suggested by the learned Counsel for the Appellant.
He noted that the Appellant in any event has in fact waived his right to service of processes having taking further steps, filed processes and participated fully in the proceedings of the Court below:
RESOLUTION OF ISSUE NO. 1
Learned Counsel for the Appellant gave a two-pronged but related attack on the jurisdiction of the Court below even in his first leg of issue No. 1. The Respondent has admitted that both parties are employees of the Niger Delta Development Commission (NDDC). The National Industrial Court has Jurisdiction on employer – employee matters but does not have jurisdiction as in this case on matters between employee and employee, therefore the Respondent had no reasonable cause of action in this suit against the Appellant.
The above argument by the Appellant eventually boils down to the scope of the jurisdiction if any of the Court below in labour matters and or relations between employee and employee.
The jurisdiction of the National Industrial Court would be essentially found in the provision of Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and also in Section 7 amongst others of the National Industrial Court Act 2006.
Let me start by bringing out the provisions of Section 254C – (1) (a)(d) and (k).
“254C – (1) notwithstanding the provisions of Section 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
a. Relating to or connected with any labour, employment trade unions, industrial relations and matters arising from workplace, the conditions of service including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
b. Relating to or connected with any dispute over the interpretation and application of the provision of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.
c. Relating to or connected with dispute arising from payment or nonpayment or salaries, wages, pensions gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the federation and matters incidental thereto;
Section 7 (1) (a) of the National Industrial Court Act 2006 also states that:
1. The Court shall have and exercise exclusive jurisdiction in civil causes and matters
a. Relating to
i. Labour, including trade unions and industrial relations, and
- Environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto;…“
Clearly, and as pointed out by the learned authors – Offornze D. Amuchenzi and Paul U. Abba in their book “The National Industrial Court of Nigeria – Law Practice and Procedure” (2013, Wildfire) page 71
“…the jurisdiction of the NIC extends to all matters related to incidental thereto or connected with any labour or employment dispute.“ In effect therefore, its exclusive jurisdiction extends to matters having a nexus, inextricably linked or reasonably connected to subject matters over which jurisdiction is conferred in Section 254C.”
Put in another way the jurisdiction of the National Industrial Court relates to the ramifications of labour and labour relations in its length and breadth and does not make any distinctions between employer – employer relations, employer – employee relations and as in the instant case employee – employee relations as far as it concerns labour.
For example to show the width of the jurisdiction of the NIC, the word ‘labour’ appears separately on the same line with “employment” in Section 254C – 1 (a).
In the 4th Edition of the book “Nigerian Labour Law” a foremost Nigerian Scholar on Labour Law Professor Akintunde Emiola talks of “Labour” in relation to the jurisdiction of the National Industrial Court at page 485 thus:
“Labour is not only a word in the English language but also a concept in the law of employment. In its ordinary usage for instance, ‘Labour’ refers to those who work in contrast to those who own or manage. But as a concept ‘labour’ encapsulates the whole gamut of employment with all the common law and statutory rights, obligations and benefits arising there from. It also includes the law and practice of industrial relations.
Part of the “matters incidental to” labour are the right to form and belong to trade union and defend that right by recognized legal means; the right to work under safe and conducive environment; and the right to social benefits provided by law…“
At page 486 of the book talking specifically about the provision of Section 14 of the NIC Act the learned author said.
“The broad powers of the National Industrial Court under the Act are to exercise the jurisdiction vested in it and, in every cause or matter grant absolutely or on such conditions it may deem fit, “all such remedies whatsoever as any of the parties thereto may appear to be entitled…“as will completely and finally determine all the matters in dispute and prevent” all multiplicity of legal proceedings concerning any of those matters.”
In the instant case, it is clear that the Respondent who was employed for the Appellant and attached to the Appellant as his special assistant is entitled to reliefs as to the interpretation of his conditions of employment when the Appellant started making demands as of right and actually collecting part of the Respondent’s salaries and allowances.
As recognized by counsel to the Parties in this appeal. A cause of action in law means:
a. A cause of complaint;
b. A civil right or obligation for determination by a Court of law;
c. A dispute in respect of which a Court of law is entitled to invoke in judicial powers to determine;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
d. Consequent damages,
e. Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to be proved;
f. All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person;
g. It is a factual situation which enables one person to obtain a remedy from another in Court in respect of injury.
See A-G Federation vs. Abubakar (2007) 10 NWLR (pt. 1041) 1 SC, S.P.D.C vs. X.M. Federal Ltd. (2006) ALL FWLR (pt. 339) 822 SC. A-G Federation vs. ANPP (2003) 12 SCNJ 67 (2004) FWLR (pt. 190) 1458 SC. Nwokedi vs. Egbe (2005) 9 NWLR (pt. 930) 293 Mobil Oil Plc vs. D.E.N.R. Ltd. (2004) 1 NWLR (pt. 853) 142.
A cause of action is also the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination facts, which gives rise to a right to sue and it consists of two elements, viz, the wrongful act of the Defendant, which gives the Plaintiff his cause of complaint; and the consequent damage.
See Adesokan vs. Adegorolu (1997) 3 NWLR (pt. 493) 261 SC, Ajayi vs. Mil Adm Ondo State (1997) 5 NWLR (pt. 504) 237 SC, Rhein Mass Und SC GMBH vs. Rivway Lines Ltd. (1998) 5 NWLR (pt. 549) 265 SC, Emiator vs. Nigerian Army (1999) 12 NWLR (pt. 631) 362 SC, Agbanelo vs. Union Bank of Nigeria Ltd. (2000) 4 SC (pt. 1) 233, Oduntan vs. Akibu (2000) 7 SC (part 11) 106, Messers NV Scheep vs. The M.V. “S. Araz” (2000) 12 SC (part 1) 164.
It is also important to note that in order to determine whether or not a suit discloses a cause of action and the relief sought, the Courts are required to examine the averment in the pleadings and see if they disclose cause of action. Once the statement of claim raises some issues of law or fact calling for determination by the Court, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. Thus, a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the Defendant is required to meet.
SeeIdachaba vs. Ilona(2007) 6 NWLR (pt. 1030) 277 Nicon Ins. Corp. vs. Olowofoyeku (2006) 5 NWLR (pt. 973) 244, Mobil Oil Plc. vs. D.E.N.R. Ltd. (2004) 1 NWLR (pt.853) 142.
In the instant case, the averment in the pleadings of the Respondent disclose a cause of action, entertainable by the Court below under the provision of Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The learned trial judge was thus right to have assumed jurisdiction in the Respondent’s/Claimant’s suit.
The second leg of Appellant’s issue No. 1 deals with service of process. I must begin by saying that the learned counsel for the Respondent was right when he said that the Appellant has not appealed against the crucial finding of fact by the Court below on page 246 of the Record of Appeal that the Court was satisfied that there was good and proper service of processes on the Appellant/Defendant.
Secondly, the provision of Order 7 of the National Industrial Court (Civil Procedure) Rules 2017 makes novel and comprehensive rules on personal service of processes on litigants. The provision of Order 7 Rule 1 – (1) (b) which is of special significance in this case states that:
“1 – (1) ANY process or document required or authorized by these Rules or ordered by the Court to be served on any person who is a party in a matter may be served as follows:
a) …
b) …
c) By leaving a copy of the document or process at the person’s place of employment.
The provision of Order 7 of the National Industrial Court (Civil Procedure) Rules aforesaid cover all processes to be served on a Defendant including originating processes. The said provision only makes room for substituted service of processes where there is failure of service by electronic means as envisaged under Order 7 Rule (1) – (7), (9), (10) and (11) of the said Rules.
In the instant case, processes including originating processes were served personally on the Appellant within jurisdiction under Order 7 – Rule (1) (b) of the NIC (Civil Procedure) Rules.
All the arguments by the Appellant that the provisions of the Rules are inconsistent with the Sheriffs and Civil Process Act and/or the Constitution of the Federal Republic of Nigeria 1999 (as amended) are with respect unfounded, unwarranted and unfortunate.
Issue No. 1 is resolved against the Appellant.
The complaint of the Appellant on issue No. 2 is that the processes in the suit were signed by Ozinko O. Ozinko Esq., while the seal affixed on the process is that of Okpan Ozinko Okpan. He concluded relying on the case of Yaki vs. Bagudu & 2 Ors. (2015) SC LPELR – 25721 amongst other that a Court process signed by a legal practitioner in his capacity as a legal practitioner without affixing the seal and stamp of the Nigeria Bar Association is incompetent.
Learned Counsel for the Respondent approached Appellant’s issue No. 2 in two perhaps three ways.
i. The Court will not allow a litigant to be denied a hearing as a result of rigid reliance on technicality
ii. “Change of name” is known to our laws and cannot be a ground to defeat the action before the Court.
iii. That the authority of Yaki & Anor. vs. Bagudu (2015) 249 LRCN SC 1 does not apply as the case relates to a complete absence of seal on a process.
Respondent’s counsel submitted that Ozinko O. Ozinko is one and the same person as Okpan, Okpan Ozinko and that the issue only arose in the Appellant’s Reply Brief on points of law.
He submitted that Okpan, Okpan Ozinko’s seal are counsel’s documents and still remain valid. On this, he referred to Rule 13 of the Rules of Professional Conduct 2007 which envisages change of name. He urged us to uphold the ruling of the learned trial judge which accepted Mr. Ozinko’s explanation on the name on his Legal Practitioner’s seal and stamp as consequent on “change of name.”
RESOLUTION ON ISSUE NO. 2
Amidst many irregularities on the face of Ground Three of the Appellant’s Notice and Grounds of Appeal which would have been declared incompetent if raised by the opposing party, the best way to approach the said ground of appeal and issue 2 raised there from is as stated both by the learned trial judge and the Respondent’s Counsel on appeal that the Appellant/Defendant only raised this issue in his reply on point of Law.
A Reply on point of law is not synonymous to an objection on facts as stated by the Respondent’s/Claimant’s Counsel. Therefore, the issue of change of name was rightly decided by the learned trial judge when he held at page 247 of the Record of Appeal that:
Furthermore, in Defendant’s Reply on point of law, Defendant introduced a recondite issue that the name of Counsel on the process before this Honourable Court is different from the name on the seal of Counsel. This contention stems out of having the name Ozinko O. Ozinko on the process as name of Counsel to Claimant but having the name Okpan Ozinko Okpan on the NBA stamp of Counsel to Claimant. In replying to this, Claimant’s Counsel filed an affidavit attaching documents evidencing a change of name. I have gone through the submissions of both Counsel on this head. From the evidence available to this Court, this Court is satisfied that the name Ozinko O. Ozinko and the name Okpan Ozinko Okpan is one and the same person, and I so hold. There is nothing, having gone through the evidence before the Court, to mislead the Court or the Defendant that the name Ozinko O. Ozinko and the name Okpan Ozinko Okpan is not one and same person.
It will suffice to say that whereas the Court is doing her best to look at the substance of the case rather than technicalities, counsel should do way to avoid the temptation of throwing spanners into a case and delaying the hearing of the case on the merit through the instrument of technicalities.
From all that have been said above, the preliminary objection of the Defendant fails and the same is hereby dismissed.
I make no order as to cost. Parties shall bear their respective costs.
Issue No. 2 is resolved against the Appellant.
The Appellant nominated two issues for the determination of this appeal. The two issues were resolved against the Appellant.
This appeal lacks merit and it is accordingly dismissed.
The Ruling of Hon. Justice M. N. Esowe of the National Industrial Court, Calabar Division delivered on the 9th day of May, 2019 is hereby affirmed.
N30,000 costs is awarded to the Respondent.
PHILOMENA MBUA EKPE, J.C.A.: My learned brother, Mojeed A. Owoade, JCA afforded me the privilege of reading in advance the judgment just delivered. My lord has meticulously settled all the issues for determination leaving no room for any addition. I also agree that the appeal lacks merit and is hereby dismissed.
HAMMA AKAWU BARKA, J.C.A.: My lord in his usual kindness made available to me in draft the judgment just read.
I wholly agree with the reasoning and conclusion arrived thereof, and have nothing useful to add.
I adopt the reasoning in the lead judgment in dismissing the appeal and affirming the ruling of the lower Court delivered on the 9th of May, 2019, coram M. M. Esowe, J.
Appearances:
William Ballantyne Esq. For Appellant(s)
Ozonko O. Ozonko Esq. For Respondent(s)
