ALIYU SANI. & 18 Ors. -VS- NATIONAL INSURANCE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISON

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATE: 27^TH MARCH, 2019 SUIT NO:NICN/ABJ/28 /2015

BETWEEN

ALIYU SANI.
IKUNAIYE ZAINAB
ABDUL LAWAL.
OLUWAFEMI SEGUN ISAAC.
ADIOYE A. MICHAEL.
AJIBOWOABIOLA.
OMILABU A. ABIODUN.
OBIANYOR OKEZIE PIUS.
AKAWO GWAMNA.
AMEH ECHE JAMES. CLAIMANTS
YASHIM MARY.
AGUSAH M. DIANA.
AFANGIDEH 0. PETER.
UDIHALHAJI.
DESMOND OMOARUHKE.
ATTAH E. AGNES.
MBAFULU U. WILLIAMS.
FATILE F. OLAOLUWA.
JAMES UKPE.

AND

NATIONAL INSURANCE COMMISSION. DEFENDANTS
THE COMMISSIONER OF INSURANCE.

REPRESENTATION

AYOTUNDE OGUNLEYE for the Claimants

STANLEY UMEAKUEKWE for the Defendants

JUDGEMENT

The Claimant, by Amended General Form of Complaint filed on 29^th June, 2017 with the accompanying frontloaded documents, approached the Court for the following reliefs:
WHEREOF the Claimants claim against the Defendants jointly and severally as follows:

A DECLARATION that the Claimants are entitled to Payment of Pension from the 1st Defendant.

A DECLARATION that the decision of the Defendants to stop payment of Pensions to the Claimant is Unlawful, null and void.

iii. AN ORDER directing the Defendants to resume the payment of Pension to the Claimants forthwith.

The Sum of N10,000,000.00 (Ten Million Naira) only being general damages for the hardship, severe mental anguish and embarrassment occasioned the Claimants and their families as a result of the Defendants failure and or refusal to pay their Pension as and when due.

Cost of instituting and prosecuting this Suit.

The Defendants filled their STATEMENT OF DEFENCE filed on 16^th November, 2017.

The Defendants aver that sometime in September 2007, the Federal Ministry of Finance sought the approval of the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, among other things for the complete reorganization, restructuring and automation of the 1st Defendant as recommended by Technical Review Committee (TRC) on the Verification of Recertification of Insurance Companies and the Repositioning of the National Insurance Commission (NAICOM).

Defendants averred that by a publicly advertised process in accordance with the due process requirements of the Federal Government of Nigeria, the 1st Defendant appointed the Firm of H Pierson Associates Ltd as Human Resources Consultants for the restructuring of the 1st Defendant in line with the approval of the Technical Review Committee’s report by the President as stated above. Furthermore, that the Human Resources Consultants in consultation with the Project team Members carried out the restructuring exercise and reported to the Defendants.

The Defendants stated that in accordance with the approved implementation plans, the affected Staff of the 1st Defendant including the Plaintiffs were disengaged as a result of the reorganization/restructuring as recommended by the Technical Review Committee (TRC) were duly paid all their agreed/stipulated terminal benefits and It was never pension; and that each Staff collected their respective cheques.

WHEREOF THE DEFENDANTS pray the Honourable Court to dismiss the suit for lacking a reasonable cause of action, same being speculative, frivolous and constituting an abuse of the process of Court.

COUNTERCLAIM OF THE DEFENDANTS

14. The Defendants/Counterclaimants repeat and adopt Paragraphs 1-13 of its Statement of Defence in proof of its counterclaim.

15. By reason of the foregoing, the Defendants/Counterclaimants aver that the Plaintiff should refund all sum paid as pension as they are not entitled to same, as this act amount to misrepresentation of non-disclosure and counterclaims against the Plaintiffs/Defendants to the Counterclaim as follows:

(i) An Order directing that the Plaintiffs/Defendants to the Counterclaim to return and refund the total sum paid to Defendants/Counterclaimants, as said payments were in breach of Pension Reform Act 2004.

(ii) An Order directing the Plaintiffs/Defendants to Counterclaim to equally refund all interest (with the prevailing Central Bank of Nigeria interest rate) made on the said payment to the Defendants/Counterclaimants.

The Defendant filed a NOTICE OF PRELIMINARY OBJECTION on 16^th November, 2017 supported by a 4 paragraph affidavit deposed to by Paul Omoluabi, seeking for AN ORDER dismissing the Plaintiffs’ Suit in its entirety.

GROUNDS FOR THE OBJECTION

The subject matter of this suit with same parties was adjudicated upon by court of competent jurisdiction.

That Plaintiffs and about 50 others were affected and bound by judgment of previous litigation before Hon. Justice G. Kolawole in suit NO: FHC/ABJ/CS/2009.

That out of the entire Parties, 19 Parties herein filed again before this Honourable same prayers already adjudicated upon by the previous court, particularly at page 3 paragraph (f) of Justice Kolawole’s judgment dated 11/7/2014 compare with paragraph i and ii at page 2 of the Amended General Form of Complaint dated and filed 29th June, 2017.

The Suit is frivolous, vexatious, speculative, hypothetical, academic and an abuse of Court process.

This Honourable Court lacks the requisite jurisdiction and competence to entertain and/or determine this Suit.

It is in the interest of justice to dismiss the Suit.

The DEFENDANTS’ WRITTEN ADDRESS IN SUPPORT OF THE PRELIMINARY OBJECTION

ISSUE

Whether this Honourable court has the requisite jurisdiction to entertain and determine this suit considering the grounds upon which this application is brought.

It is counsel’s submissions that this suit is incompetent on the ground that it is in breach of the principles of estoppel per rem judicatam, in other words, this suit has been adjudicated upon before by same parties, privies and on same subject matter by a court of competent jurisdiction and a verdict was validly delivered. Omiyale v. Macaulay (2009) 7 NWLR (Part 4111) 597, 613D, per Oguntade, JSC.

He submitted that the Originating Processes amount to abuse of court processes and that where a process constitutes an abuse of Court process, the proper order a Court can make is an order of dismissal. Ojo v. Attorney-General, Oyo State (Supra) at Pages 327-328 H-A, per Akintan, JSC; Arubo & Ors v. Aiyeleru & Ors (1993) 3 NWLR (Part 280) 126, 142A-B, per Nnemeka — Agu, JSC; Onyeabuchi v. Independent National Electoral Commission & Ors (2002) NWLR (Part 769) 417, 441-442 G-A.

Counsel further submitted that this Honourable Court is deprived of jurisdiction to entertain this suit and for reasons adduced above. Madukolu v Nkem Dilim (1962) 1 ALL NLR 587, 594.

The CLAIMANTS/RESPONDENTS WRITTEN ADDRESS IN OPPOSITION TO THE DEFENDANT/APPLICANT’S NOTICE OF PRELIMINARY OBJECTION DATED 81^th NOVEMBER, 2017 was filed on 27^th April, 2018).

ISSUE

Whether this Honourable Court has the requisite jurisdiction to entertain and determine this suit considering the grounds upon which this application is brought.

Learned Counsel submitted that contrary to the Defendant/Objector’s contention, this suit is not caught up by the principle of estoppel per rem judicatam. per Ngwuta, JSC in Adeyefa v. Bamgboye (2014) 11 NWLR (Pt 1419) 520 at 542- 543 paragraph H-A.

Furthermore, that for the plea of Res Judicata to arise, all these conditions must exist concurrently and that the absence of one condition will lead to the failure of the plea of res judicata. Adeyemi – Bero V. LS.D.P.C (2013) 8 NWLR (Pt. 1356) 238 at 305 Paras B-H, per Ariwoola, JSC.

He submitted that it is already settled law that in other to sustain a plea of “res judicata” the party who is pleading it must satisfy the required conditionalities which are:

The parties (or their privies as the case may be) are the same in the present case as in the previous case.
That the issue and subject matter are the same in the previous suit as in the present suit
That the adjudication in the previous case must have been given by a Court of competent jurisdiction;
That the previous decision must have finally decided the issues between the parties.

M.O Odutota v. Chief Z. Oderinde & Ors (2004) 6 SCM 161 at 167, (2004) 12 NWLR (Pt. 888) 574, (2004) 30 WRN 1, (2004) 18 NSCQR 577; Nkanu & Ors v. Onun & Ors (1977) 5 SC 13; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528; Udo v. Obot (1989) 1 NWLR (Pt. 95) 59; 5.0 Ntuks & Ors v. Nigerian Ports Authority (2007) 10 SCM 127, (2007) 13 NWLR (Pt. 1051) 392.

Counsel argued that moreover, the reliefs before the Federal High Court in Suit No: FHC/ABJ/CS/2009 are different from the reliefs in this present suit before this Honourable Court.

reliefs before the Federal High Court is reproduced as follows:

A DECLARATION that the Defendants flack the requisite power to carry out any restructuring exercise without the relevant approvals.

A DECLARATION that the on-going Restructuring/Reform exercise being carried out by the Defendants is ultra vires, null and void and of no effect whatsoever, the Defendants having failed to obtain the necessary approvals or observe the proper procedure laid down by the Guidelines for the Reform of Government Parastatals.

A DECLARATION that the purported termination of the Plaintiff’s employment with the Defendant is unlawful.

AN ORDER compelling the Defendants to forthwith reinstate the Plaintiffs to their various duty posts.

AN ORDER compelling the Defendants to pay the Plaintiffs all their monthly salaries and allowances starting from the date of last payment until their employments are properly determined.

AN ORDER compelling the Defendants to release forthwith its (sic) statutory contributions to the Plaintiff’s Pension Funds and all deductions made from the Plaintiff’s various monthly salaries for the purposes of Pension Fund which were never remitted to their various Pension Fund Administrators and their contributions to the National Housing Fund which were deducted monthly from their salaries.

AN ORDER compelling the Defendants to release forthwith the Plaintiffs’ various Tax Clearance Certificates.

IN THE ALTERNATIVE to (c), (d), (e), above, One Billion Naira against the Defendants as general damages for the Defendants wrongful and unlawful acts.”

Furthermore, that the reliefs herein contained in this suit as presently constituted is as follows:

“A DECLARATION that the Claimants are entitled to payment of Pension from the 1st Defendant.

A DECLARATION that the decision of the Defendants to stop payment of Pensions to the Claimant is unlawful, null and void.

iii. AN ORDER directing the Defendants to resume the payment of Pension to the Claimants forthwith.

The Sum of N10,000,000.00 (Ten Million Naira) only being general damages for the hardship, severe mental anguish and embarrassment occasioned the Claimants and their families as a result of the Defendants failure and or refusal to pay their Pension as and when due.

Cost of instituting and prosecuting this Suit.”

Counsel submitted that the reliefs sought in the suit before the Federal High Court and this suit as presently constituted is different. That the Claimants/Respondents’ in instant suit sought four (4) reliefs which bothers on non-payment of the Claimants/Respondents’ pension, which was unilaterally stopped, while the six (6) reliefs contained in the suit before the Federal High Court bothers unlawful dismissal of employment. Thus, the principle of estoppel does not apply to this case and the cases of Omiyale v. Macaulay (2009) 7 NWLR (Pt. 4111) 597 and Jimoh v. Akande (2009) 5 NWLR (Pt. 1135) 549 does not apply.

Counsel submitted that it is trite that when a party sues in a representative capacity, such capacity should be indicated under the party’s name in the title of the suit. MTN Nigeria Communications Ltd V. Emegano (2016) LPELR-41090.

It is counsel’s submission that the main reason why a person is made a party to an action in Court is so that he should be bound by the result of the action. Hence, that when a person is not a party to a suit, he is nothing but a stranger to that suit and thus cannot be bound by the Judgment of the Court. Olawoye V. Jimoh (2013) 13 NWLR (Pt. 1371) 362; N.D.P V. I.N.E.C (2013) 6 NWLR (Pt. 1350) 392 at 426, Para F, per Fabiyi, JSC.

Counsel submitted that the order of a Court of competent jurisdiction is binding on all parties until set aside by a higher Court and all parties must obey it. per Okoro, JCA in Popoola v. Babatunde (2012) 7 NWLR (Pt 1299) page 302 at 322 paragraph F; Dauda v. First Bank of Nigeria (2003) All FWLR (Pt 694) 135.

Counsel contended that the Notice of Preliminary Objection filed by the Defendant/Applicant dated 8th November, 2017 and filed 9th January, 2018 is an abuse of Court process. That this objection having been decided upon by this Honourable Court was filed to annoy and harass the Claimant/Respondents. R – Benkay Nigeria Limited v Cadbury Nigeria Limited (2012) LI’ELR-7820(SC).

The Defendants filed their REPLY ON POINTS OF LAW on 19^th May, 2015.

Learned Counsel to the defendant submitted that the claimants in this suit were privies to the previous suit adjudicated upon by a court of competent jurisdiction, urging the Court to hold that the Plaintiffs are privies and therefore same parties.

Counsel also submitted that the claimants’ depositions in their Counter Affidavit are false and no evidence to substantiate the facts deposed therein and that such facts deposed, are deemed abandoned. N.A.S. Ltd v. UBA Plc (2005) 14 NWLRT (part 945), 436 C, per Akintan, JSC.

Furthermore, that the Plaintiffs never exhibited any evidence reflecting any form of payment whatsoever, no document reflecting when their cause of action arose and any other relevant document to support their assertions. N.A.S. Ltd v. UBA Plc (supra) 437 D-F, per Akintan, JSC.

The Defendant moved his Preliminary Objection on and adopted his Written Address and Reply on Point of Law both with adumbration. The Claimant adopted his counter affidavit and Written Address and the matter was adjourned for ruling. Thereafter the parties were requested to address the court with regard to the import of PAN ATLANTIC SHIPPING AND TRANSPORT AGENICIES LTD Vs ABAYOMI BABTUNDE [2007] LPELR 4826 CA Where it was established even though a cause of action may give rise to several remedies once one remedy had been claimed in one separate action that claim would act as a bar to all other remedies stemming from the same cause of action by the plea of res judicata .See GAFARAFU Vs UAC Ltd [1961] All NLR 785. And SAVAGE Vs UWECHIE [1972] 1All NLR (Part 1) 251.

Both parties filed Further Addresses.

On the 12^th December 2018 parties adopted their respective Written Addresses and adumbrated their positions accordingly and this matter was adjourned for ruling

Court’s Decision

Having carefully summarized the position of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Defendant’s application.

The position of the law as regards Res Judicata is as was stated in the case of DAUDA V. A.G. LAGOS 46 NSCQR “Where a judgment, i.e. a final judicial decision has been pronounced on the merit by a court with the requisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merits. Once it is a final decision on the same question and between the same parties, it is binding until upset on appeal. Res judicata gives effect to the policy of the law that parties to a judicial decision should not afterwards be allowed to re-litigate the same question even if the decision is wrong. This is premised on the fact that a court has jurisdiction to decide wrongly as well as correctly, and if it makes any mistake, its decision is binding unless corrected on appeal.” Per Bode-Rhodes-Vivour, JSC at P. 180.

The case continued that “Where a party sets up res judicata by way of estoppel as a bar to the other party’s claim, the following must be established:
a)There must be a judicial decision;
b)The court that rendered the decision must have had jurisdiction over the parties and the subject matter;
c)The decision must be final and on the merits;
d)The decision must determine the same question as that raised in the later litigation; and
e)The parties to that later litigation were either parties to the earlier litigation or their privies, or the earlier litigation was in rem.” Per Bode-Rhodes-Vivour, JSC at P. 180.

See also, A.G. NASARAWA V. A.G. PLATEAU 50 NSCQR Where it was held that “Otherwise known as estoppel by record arises when an issue of fact has been judicially determined in a final matter between the parties by court or a tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are estopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action.” Per O.O. Adekeye JSC at P. 375.

On what a party pleading Estoppel per rem judicatem must prove to succeed:
a)That the parties or their privies involved in both the previous and the current proceedings in which the plea is raised are the same;
b)That the claim or issue in dispute in both proceedings are the same;
c)That the res or the subject matter of the litigation in the two cases is the same;
d)That the decision relied upon to support the plea is valid, subsisting and final;

That the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the force of estoppel per rem judicatem to establish the above pre-conditions conclusively.” Per O.O. Adekeye JSC at P. 375.

The Apex Court continued that “The plea of Res Judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is as a plea, a bar and as evidence, it is conclusive. Once a plea of Res Judicata has been established, the jurisdiction of the court would be ousted.” O.O. Adekeye JSC at P. 376.

(a) Now bearing in mind that there are; – “Three essential elements are involved in the plea of res judicata namely: –

An earlier decision on the issue;
A final judgment on the merits; and
the involvement of the same party, or parties in privity with the original parties.” as Per Awala, JCA in ABE V. ADENIYI [2007] 4 N.W.L.R. (PT. 1023) 191 AT 218 PARAS.A – B (CA) and juxtaposing the former case FHC/ABJ/CS/2009 against this instant suit I am satisfied that the parties in FHC/ABJ/CS/2009 include the 19 Claimant in this instant hence the parties in both suit are the same, i.e. the same parties in this suit are the same (included in ) the parties to FHC/ABJ/CS/2009. Secondly, from the certified true copy of the judgment of FHC/ABJ/CS/2009 tendered, it would appear in satisfaction of the principle stated in IKEME v. VC, UNIVERSITY OF NIG. & ORS. (2014) 40 NLLR (PT. 123) 466 NIC @ 470 that “the Defendants or any party alleging an abuse of court process must place before the court concrete evidence such as the processes of the other pending case or any such material particulars to enable the court make a finding that would enable it reach a decision on whether or not the facts and circumstances of the case indeed amount to an abuse of court process” I find that FHC/ABJ/CS/2009 culminated in a final decision of a competent court of record. Also, I find that the reliefs in this suit could substantially be subsumed in reliefs (f) of FHC/ABJ/CS/2009. Bearing in mind the position of the law is that parties are precluded to litigate their remedies in piecemeal where a given cause of action gives rise to more than one remedy and once one remedy had been Claimed in an action that claim would act as a bar to any and all other remedies derivable from the same cause of action by virtue of the plea of res judicata PAN ATLANTIC SHIPPING AND TRANSPORT AGENICIES LTD Vs ABAYOMI BABTUNDE [2007] LPELR 4826 CA.

All in all I find that the Defendants preliminary objection has merit and succeeds. This suit is caught up by the doctrine of res judicata hence this court cannot / is precluded by law from further entertaining or making any determination in respect of this suit.