IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 25th day of June, 2019 SUIT NO: NICN/PHC/90/2018
BETWEEN
Onwumere Destiny Chidi———————————CLAIMANT
AND
L.T.T Oil & Gas Nigeria Limited
Pan African International Limited
Mohamed Gillen
CITIBank Nigeria Limited————————–DEFENDANTS
Representations:
K. Oteyo for the Claimant
T.J. Krukrubo with I. Ozuo and A. Adeyehun for the 4th Defendant.
Ruling.
This suit was commenced by a general form of complaint filed on the 30th of July, 2018 along with a statement of fact, witness statement on oath, list of witnesses, list of documents to be relied upon and copies of the documents.
The suit was originally commenced in Lagos Division before Hon. Justice E.A. Oji who heard the motion ex-parte filed in this suit, refused the prayers sought and directed the motion on notice filed along with the Ex-parte and other issues in the suit to be determined in Port-Harcourt Division. Consequently, this suit was transferred to this Court sometime in October, 2018.
Arising from the complaint and statement of fact, the Claimant is claiming against the 1st and 2nd Defendants jointly and severally as follows:
1. A DECLARATION that the Claimant is entitled to be paid his monthly salaries by the defendants for the month of December 2016, Thirteenth month 2016 and from the Month of JULY, 2017 to May 2018 at a net rate of two hundred and eighty five thousand naira (N285,000.00) per month.
2. A DECLARATION that the Claimant is entitled to be paid his monthly salaries from the Month of May 2018 till the termination of his employment or his resignation whichever comes first.
3. A DECLARATION that the Claimant is entitled to be refunded all financial expenses incurred in protecting the interest of the Defendants in various law suits and other ancillary matters sequel to Defendant’s express authorization.
4. An Order of this Honourable court directing the Defendants, jointly and severally, to pay to the Claimant the sum of Three Million Seven Hundred and Five Thousand Naira (N3,705,000.00), representing the Claimant’s monthly salaries from July 2017 to May, 2018.
PARTICULARS:
i. Unpaid salary for December, 2016 N285,000.00
ii. Unpaid salary for December, 2016 = N285,000.00 (thirteenth month)
iii. Unpaid salary for July, 2017 = N285,000.00
iv. Unpaid salary for August, 2017 = N285,000.00
v. Unpaid salary for September, 2017 = N285,000.00
vi. Unpaid salary for October, 2017 = N 285,000.00
vii. Unpaid salary for November, 2017 = N 285,000.00
viii. Unpaid salary for December, 2017 = N285,000.00
ix. Unpaid salary for January, 2018 = N285,000.00
x. Unpaid salary for February, 2018 = N285,000.00
xi. Unpaid salary for March, 2018 = N285,000.00
xii. Unpaid salary for April, 2018 = N285,000.00
xiii. Unpaid salary for May, 2018 = N285,00000
Grand Total N3,705,000.00
5. An Order of this Honourable Court directing the Defendants, jointly and severally, to pay to the Claimant the sum of Thirty Nine Million, One Hundred Thousand Naira only (N39,100,000.00) representing expenses incurred by the Claimant in legal tussles affecting the Defendants
PARTICULARS:
1. The sum ofN5,000,000.00 (Five Million Naira) part payment of professional fee in Suit No FHC/PH/CS/157/17.
2. The sum of N5,000,000.00 (Five Million Naira) full payment of professional fee in Suit No PHC/2541/2017.
3. The sum of N5,000,000.00 (Five Million Naira) part payment of professional fee in Suit No PHC/3591/17.
4. The sum of N5,000,000.OO (Five Million Naira) full payment of professional fee in Suit No FHC/PH/FHR/214/17.
5. The sum of N5,000,000.00 (Five Million Naira) part payment of professional fee in Suit No FHC/PH/FHR/214/17.
6. The sum of N5,000,000.00 (Five Million Naira) part payment of professional fee in Suit No PHC/2541/2016.
7. The sum of N5,000,000.0O (Five Million Naira) part payment of professional fee in Suit No PHC/3592/2017.
8. Flight tickets, hotel accommodations and sundry expenses incurred while responding to the police invitation at the office of the Inspector General of Police in the Federal Capital Territory Abuja to the tune of N4,100,000.0O (Four Million One Hundred Thousand Naira).
9. 10% interest on the above stated sums from the date of Judgment till liquidation of same.
10. Total amount pleaded for is N42,805,000.00 (Forty-Two Million Eight Hundred and Five Thousand Naira).
The Claimant while commencing the suit also filed a motion ex-parte which I mentioned has been determined by Hon. Justice E.A. Oji in Lagos Division. Along with the Motion ex-parte however, the Claimant filed a motion on notice which was brought pursuant to ORDER 20 RULE 1 (1 & 2), RULE 2(1) OF THE NATIONAL INDUSTRIAL COURT RULES 2017 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
The motion is praying this court for the following reliefs:
1. An order of Mareva injunction restraining the 1st, 2nd and 3rd Defendants/Respondents, their agents, servants, privies, howsoever called from removing, dealing with, charging, disposing of or in any manner dissipating the sum of Sixty Five Million, Four Hundred and Sixty-Four Thousand Two Hundred and Sixty-Six Naira Eight Kobo (N65, 464, 266.08) only presently domiciled at the Garrison Junction Port-Harcourt Branch of the 4th Defendant via current account number; 0112884009 belonging to the 1st and 2nd Defendant pending the hearing and determination of the substantive (suit).
2. An order of Mareva injunction restraining the 4th Defendant/Respondent, its agents, servants, privies howsoever called from releasing to the 1st, 2nd and 3rd Defendants/Respondents or allowing them access for the purpose of removing, dealing with, charging, disposing of or in any manner dissipating of the sum of Sixty Five Million, Four Hundred and Sixty-Four Thousand, Two Hundred and Sixty-Six Naira Eight Kobo (N65, 464, 266.08) only presently domiciled at the Garrison Junction Port-Harcourt Branch of the 4th defendant via current account number;0112884009 belonging to the 1st and 2nd Defendant pending the hearing and determination of the substantive suit.
3. And for such further Orders as this Honourable Court may deem fit in the circumstance.
In support of the motion on notice, Claimant filed a 36 paragraphed affidavit deposed to the Claimant himself and supported with a written address.
The 4th Defendant, who like the 1st – 3rd Defendants filed no process in opposition of the motion on notice, posited through their counsel that they have no objection to the application.
Reacting to the Claims of the Claimant however, the 4th Defendant on the 19th of October, 2018 entered conditional appearance and filed a statement of defence along with a list of witnesses and witness statement on oath.
Till date, no process is filed by the 1st – 3rd Defendants in defence of the suit.
The 4th Defendant also filed a notice of preliminary objection on the 26th of March, 2019 in reaction to the suit. The notice of preliminary objection was brought pursuant to ORDER 17 RULE 9 OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES, 2017 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
The notice is praying the court for the following orders:
AN ORDER of this Honourable Court striking out the name of the 4th Defendant/Applicant from this suit.
AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which the objection was brought are that:
1. That the Claimant/Respondent failed to disclose any reasonable cause of action against the Applicant.
2. As a consequence of the above, this suit is incurably incompetent and deserving of being struck out for want of jurisdiction.
The notice of preliminary objection was supported by a written address.
The Claimant through his counsel also expresses that it has no objection or opposition to the prayers sought by the 4th Defendant.
In view of the foregoing, I find it apposite to first consider the motion on notice before I address the preliminary objection.
Arising from the written address in support of the motion on notice, counsel to the Claimant, K. Oteyi Esq. formulated a sole issue for determination to wit:
Whether the Orders sought herein are grantable by this Honourable Court?
In arguing the sole issue, counsel submitted that the basis for the grant of Mareva injunction was enunciated in the case of Mareva v International Bulk Carriers (1975) 2 Lloyds Rep. 509, to the effect that if it appears that the debt is due and owning and there is danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory injunction so as to prevent him from disposing of those assets. Counsel cited Order 20 Rule 1 (1 & 2) and Rule 2 (1) of the Rules of this court. He also referred the court to the case of AIC Limited v NNPC (no citation).
Counsel submitted further that the Claimant has shown that he is a creditor who has right to be paid the debt owed to him by the 1st and 2nd Defendant and that the debt is due and owing and there is danger that the 1st, 2nd and 3rd Defendants may remove, deal with, charge, dispose of or in any manner deal with the sum in the account maintained with the 4th Defendant.
Counsel concluded by urging the court to grant the application.
In view of the forgoing and considering the fact that the 4th Defendant has no objection to the application and the fact that the 1st to 3rd Defendants have filed no opposition to the application, the said application shall be considered on its merit.
Consequently, I have paid particular attention to the depositions in the affidavit in support of the application and also evaluated the exhibits attached to the affidavit and I find that the sole issue for the determination of the motion is to wit:
Whether or not the Applicant is entitled to the grant of this application.
In resolving the sole issue, I must start by taking into account the Rules of this court pursuant to which this application was brought, i.e. Order 20 Rule 1 (1) & (2) Rule 2 which provides thus:
1. Where in any suit the subject matter:
(1) on which the Court has exclusive jurisdiction; the defendant or respondent, with intent to obstruct or delay the execution of any decree that may be made against the defendant, is about to dispose of the defendant’s property, or any part thereof, or remove any such property from the jurisdiction ; or
(2) is founded on contract or tort or in which the cause of action arose within jurisdiction—
(a) the defendant or respondent is absent from jurisdiction or there is probable cause to believe that the defendant or respondent is evading service ; and
(b) the defendant or respondent is beneficially entitled to any property in Nigeria in the custody or under the control of another person in Nigeria, or such person is indebted to the defendant or respondent, then, in either case, the claimant may apply to the Court either at the time of the institution of the suit or at any time thereafter before final judgment, to call upon the defendant or respondent to furnish sufficient security to fulfill any decree that may be made against the defendant or respondent in the suit, and on failing to give the security, or pending the giving of such security, to direct that any property (movable or immovable) belonging to the defendant or respondent shall be attached until the further order of the Court.
2. The application for attachment shall contain details of the property required to be attached, and the estimated value thereof so far as the claimant can reasonably ascertain, and the claimant shall, at the time of making the application declare that to the best of the claimant’s information and belief, the defendant or respondent is about to dispose of or remove the property with the intent stated in Rule 1 of this Order.
The essence of taking the foregoing provision into account is to determine whether this court has jurisdiction to make an order of Mareva injunction as sought by the Applicant. I have taken a look at the complaint filed and same is found to have arisen from the employment of the Applicant, a matter which this court has exclusive jurisdiction to entertain by virtue of section 254C of the Constitution of Federal Republic of Nigeria 1999 (as amended). Also, this application is predicated on the alleged apprehension of the Applicant that the 1st – 3rd Respondents will dispose of their asset which is in custody of the 4th Respondent. Although the Rules has not specifically mentioned Mareva injunction, the provision for an order for the ‘interim attachment of property’ is a similitude of the order made in an application for Mareva injunction.
The court in I.F.C. v. DSNL Offshore Ltd. (2008) 7 NWLR (Pt.1087) stated the purpose of Mareva Injunction when it held that:
“In all mareva applications, the factors to be borne in mind are: (a) It should be applied for ex-parte. This is so because secrecy from the defendant is essential; and (b) Speed. It should be applied for with dispatch.
The purpose being to prevent the injustice of a defendant taking away his assets from the jurisdiction, assets which might otherwise have been available to satisfy a judgment. After the grant of a mareva injunction, a dissatisfied respondent can have it set aside by an application on notice supported by a detailed affidavit to justify the setting aside of the order…”Per RHODES-VIVOUR, J.C.A.(as he then was) (Pp. 12-13, paras. E-C).
As rightly contended by counsel to the Applicant, the grant of Mareva Injunction was considered in the case of Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. (1975) 2 LI, L.R. 509. where the court held that:
“In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing – and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment…”
The Order made is usually tentative and can be reversed by the same court upon the Defendant entering security or upon the final judgment, depending on the outcome of the suit.
In addition to the foregoing, Order 20 Rule 2 quoted above was specific on what the Applicant must do in applying for an order of attachment as in the instant case and same shall be taken into account in the determination of the application.
Having reckoned the provision of the rules, courts have also made expositions on factors to be considered or condition to be fulfilled in the grant of Mareva Injunction. Therefore, in addition to the provision of the Rules of this court, the application for the grant of Mareva Injunction shall be considered in the light of the conditions set by the courts. In this regard, the court in Sotuminu v. Ocean Steamship (Nig.) Ltd. (1992) NWLR (Pt. 239)1 posited aptly that:
“…the Courts are ever conscious of the fact that because of its very nature, Mareva injunctions could be open to abuses. So they have evolved some rules and principles which are designed to guard against such abuses. By these rules, before a Mareva injunction could be granted the applicant must show:
that he has a cause of action against the defendant which is justiciable in England: See- Siskina (Owners of Cargo lately laden on board) v. distas Compania S.A. (1979) A.C. 210;
that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain: See -Barclay-Johnson v. Ynill (1980) 1 WLR 1259. at p.1264; also – Rahman (Prince Abdul) him Turki al Sudiary v. Abu – Taha (1980) 1 WLR 1268, at p.1272;
that the applicant has made a full disclosure of all material facts relevant to the application: see – Negocios Del Mar SA. v. Doric Shipping Corp. SA. (The Assios) (1979) 1 LI. Rep. 331;
that he has given full particulars of the assets within the jurisdiction.
that the balance of convenience is on the side of the applicant; and
that he is prepared to give an undertaking as to damages.
If he fails to satisfy the Court in any of these preconditions for a grant of a Mareva injunction, it ought not to be granted.” Per NNAEMEKA-AGU, J.S.C. (Pp. 31-32, paras. B-A
With regards to the first condition, there is no gainsaying that the cause of action is to be founded in Nigeria rather than England. In that wise, the court in LAWAN v. ZENON PETROLEUM & GAS LTD & ORS (2014) LPELR-23206(CA) posited that “a cause of action refers to the entire set of facts that gives rise to an enforceable claim and it comprises of every fact which if traversed the plaintiff must prove to entitle him to judgment. See EGBE v. ADEFARASIN (No 1) (1985) SSC 50, 87 AND LAGOS STATE BULK PURCHASE CORPORATION V. PURIFICATION TECHNIQUES (NIG) LIMITED (2013) 7 NWLR (1352) 82, 102.” Per EKANEM, J.C.A. (P. 46, paras. A-C).
In the instance case, the set of fact stated in the Applicant’s statement of fact which reveals that the Applicant is an employee of the 1st and 2nd Defendant and alleges having not been paid salaries for some months and some other monies expended on behalf of the 1st – 3rd Defendants shows that there is indeed a cause of action justifiably deserving to be determined by this court. Hence, the Applicant scales through the first condition.
With regards to the second condition, there is no gainsaying that it is the affidavit and its annexures that can disclose that there is a real and imminent risk of the defendant removing his assets from jurisdiction. Consequently, I have taken a careful look at the affidavit in support of the application and find it apposite to reproduce the relevant proportions of the affidavit relating to the apprehension of the Applicant. Paragraph 26 – 33 of the affidavit states thus:
26. That I have recently noticed a gradual but sure withdrawal of the business activities of the 1st and 2nd defendants to an unknown location.
27. That I have also recently noticed that the 1st and 2nd Defendants have started selling off official vehicles and machineries and withdrawing their expatriate staff from Nigeria albeit surreptitiously.
28. That apart from huge expenses I incurred from payment of professional fees on the said defendants’ litigations, most of the suits have my name as co-defendant with the 1st and 2nd Defendants for which I may be held liable in the event of any judgment against the said Defendants jointly and severally and in the likelihood of their escape away from the jurisdiction of this honorable court.
29. That I know as fact that the rent for the joint office complex of the 1st and 2nd Defendants at Plot 113 Trans-Amadi Industrial Layout Port-Harcourt had expired since February 2018 which rent has been deliberately left without renewal by the said Defendants preparatory for their eventual flight.
30. That for reasons which are still shrouded in mystery, the 2nd and 3rd Defendants have cut off all official communications with me even my employment is technically still subsisting.
31. That no notice of termination of his employment has been served on me by either the 1st or 2nd Defendant and yet my salaries remain unpaid and my official duties sequestrated by the 1st, 2nd and 3rd Defendants.
32. That I know as a fact that there is currently no known tangible assets of the 1st and 2nd Defendants anywhere within the Federal Republic of Nigeria except the sum of Sixty Five Million, Four Hundred and Sixty-Four Thousand Two Hundred and Sixty-Six Naira Eight Kobo (N65, 464, 266.08)only secretly domiciled at the Garrison Junction Port-Harcourt Branch of the 3rd (sic) Defendant via current account nurnber;0112884009. Copy of the said statement of account is herewith annexed as Exhibit I.
33. That in the face of the mountainous debts owed me as well as other unresolved liabilities of the 1st, 2nd and 3rd defendants as stated above, there is a likelihood of the said Defendants may dissipate the money in the said account while this suit is pending.
In view of the foregoing depositions, I must foremost state that the jurisdiction of the National Industrial court is one. Hence, the removal of the asset of the 1st to 3rd Respondent from jurisdiction would mean to remove same out of Nigeria. However, for the sake of convenience, the court is in various divisions and the asset of the Respondents in question merely falls within the Port Harcourt division of this court in view of the address provided.
That said, I must condescend on the facts intended to establish real and imminent risk that the 1st and 2nd Respondent is intending to remove assets from jurisdiction of this court. Firstly, I reckon paragraph 26 and 29 which has to do with withdrawal of business activity and non-renewal of rent of the business premises of the 1st and 2nd Respondent. Secondly, I take into cognizance the assertion on the sale of official vehicle and machinery. And thirdly, paragraph 30 which states that the 1st, 2nd and 3rd Respondents have cut off official communications with the Applicant who, although is an employee, has not had his employment properly terminated.
In addition to the foregoing, I must state that I take into account the fact that the 1st, 2nd and 3rd Respondents have not made any appearance in this suit nor filed any process in reaction to the suit since it has been filed in July 2018 and evidence of proof of service abound in the court file to show that the Respondents have been served.
Ordinarily, the application for Mareva injunction ought to be granted on an ex-parte application but the 1st to 3rd Respondents have been given the opportunity to challenge the application yet the opportunity was not taken.
The foregoing are not direct proof of the removal of assets from jurisdiction, however they are sufficient to suggest an imminent risk of removal of asset from the Port-Harcourt Division of this court. The Applicant is not required to prove the removal, he is only required to prove that the removal is about to happen and the facts and circumstance of this suit are sufficient in meeting the second condition.
With regards to the third condition, the entire set of facts in the affidavit in support of the application establishes material facts relevant to the application for the grant of Mareva injunction particularly facts relating to the alleged debts owed to the Applicant arising from salaries and other authorized spending and how the Applicant is apprehensive that the said monies would not be paid. Hence, the Applicant meets the third condition.
With regards to the fourth condition which is in respect to the asset upon which the application sought is to be made, the Applicant annexed exhibit I which is the account statement in the name of the 1st Defendant with the 4th Defendant bank at their Port-Harcourt branch. The said statement of account establishes the total sum in the account as at 31st of May, 2018, two months prior to when the application was made. The sum was put at N65, 464, 266. 08 which is the sum the Applicant intends to attach. The Applicant added that he knows as a fact that there is no known tangible asset of the 1st – 3rd Respondent anywhere in Nigeria other than the said sum. Consequently, the fourth condition is satisfied by the Applicant.
With regards to the fifth, which is the requirement that the balance of convenience is on the side of the applicant. In ASCB v . Awogboro (1991) 2 NWLR (Pt. 176) 711 at 719, per Tobi JCA (as he then was) defined balance of convenience as follows:
“The balance of convenience (the opposite of inconvenience) between the parties is a basic determinant factor in on application for interlocutory injunction. In the determination of this factor, the law requires some measurement of the scales of justice to see where the pendulum tilts. While the law does not require mathematical exactness, it is the intention of the law that the pendulum should really tilt in favour of the applicant.” Per MSHELIA, J.C.A. (P.34, Paras.A-E).
In view of the affidavit in support of the application, the Applicant posited that the Respondents will not be damnified if this application is granted which is understood to mean that the Defendant will not suffer any inconvenience if this application is granted. The 1st – 3rd Respondents have not challenged the assertion and the court cannot assume on behalf of the 1st – 3rd Respondents that they will indeed be inconvenienced. Consequently, the Applicant meets the fifth condition.
With regards to the sixth condition, the Applicant in paragraph 34 of the affidavit in support undertakes to indemnify the Respondents against any damages or loss suffered should this application turn out to be frivolous and that satisfies the sixth condition.
Relating the foregoing with the requirement in Order 20 Rule 2 of the Rules of this court which requires that the application for attachment shall contain details of the property required to be attached, and the estimated value thereof so far as the claimant can reasonably ascertain, and the claimant shall, at the time of making the application declare that to the best of the claimant’s information and belief, the defendant or respondent is about to dispose of or remove the property with the intent stated in Rule 1, it is clear that the provisions have also been met in the face of the conditions set out by the courts.
The Applicant has provided details of the asset and the belief that same is about to be disposed of.
Consequently, the sole issue formulated is resolved in favour of the Applicant to the effect that the Applicant is entitled to the grant of this application.
In view of the resolution of the sole issue, the orders sought by the Applicant is granted as prayed. For avoidance of doubt, this court makes:
1. An order of Mareva injunction restraining the 1st, 2nd and 3rd Defendants/Respondents their agents servants privies howsoever called from removing, dealing with, charging, disposing of or in any manner dissipating the sum of Sixty Five Million, Four Hundred and Sixty-Four Thousand Two Hundred and Sixty-Six Naira Eight Kobo (N65, 464, 266.08) only presently domiciled at the Garrison Junction Port-Harcourt Branch of the 4th Defendant via current account number; 0112884009 belonging to the 1st and 2nd Defendant pending the hearing and determination of the substantive suit.
2. An order of Mareva injunction restraining the 4th Defendant/Respondent its agents servants privies howsoever called from releasing to the 1st, 2nd and 3rd Defendants/Respondents or allowing them access for the purpose of removing, dealing with, charging, disposing of or in any manner dissipating of the sum of Sixty Five Million, Four Hundred and Sixty-Four Thousand, Two Hundred and Sixty-Six Naira Eight Kobo (N65, 464, 266.08) only presently domiciled at the Garrison Junction Port-Harcourt Branch of the 4th defendant via current account number;0112884009 belonging to the 1st and 2nd Defendant pending the hearing and determination of the substantive suit.
In view of the fact that this application has been made since July, 2018 which is about 11 months ago, the stated sum of N65, 464, 266.08 may no longer be the exact amount in the said account. Consequent upon the omnibus prayer of the Applicant for such further Orders as this Honourable Court may deem fit in the circumstance, I find it apposite to make further Order that the order of Mareva injunction granted shall take effect on whatever sum is available in the current account number;0112884009 maintained with the 4th Defendant by the 1st and 2nd Defendant as at the date of the delivery of this ruling and the making of this orders.
In the final analysis, the application of the Applicant is found to be meritorious and the relief sought are granted to the deserving extent.
Ruling is accordingly entered in respect of the motion on Notice filed by the Claimant.
I then turn to the notice of preliminary objection which is supported by a written address. Arising from the written address, counsel to the 4th Defendant, T. Krukrubo Esq. formulated a sole issue to wit:
Whether the Claimant has disclosed any reasonable cause of action against the Applicant.
In arguing the sole issue, counsel posited that the Claimant’s claim, as shown in the averments set out in the Statement of Facts and the reliefs sought, discloses no reasonable cause of action against the Applicant. Counsel proffered the meaning of cause of action and cited the cases of Yare v N.S.W. & l.C (2013)12 NWLR (Part 1367) 173 S.C; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (part 1559) 417, Par. C-E and Chevron (Nig.) Ltd v. Lonestar Drilling Nig. Ltd (2007) 16 NWLR (part 1059) 177, Par. E-H.
Counsel posited that it is settled law that in deciding whether there exists a reasonable cause of action in a particular matter, the court is obliged to look at the set of facts pleaded in the Statement of Facts and the court is not to consider extraneous matters not contained in the statement of facts and which are outside it. He cited the case of Mohammed v Afe Babalola (2012) 5 NWLR (Part 1293) 395.
Counsel added that the mere existence of a cause of action is not enough and the Claimant must show that it is the Defendant’s act which has given rise to the cause of action. He posited that where the Claimant fails to show that it is the act of the Defendant then it is deemed that no reasonable cause of action has been disclosed against the defendant.
Counsel contended that the crux of the Claimant’s claim is that he was mandated by the 1st to 3rd Respondent to take all necessary steps to prosecute and defend the Company for the purpose of recovering debts owed to the 1st Respondent. He added that the Claimant averred that after expending huge sum of money in the litigation of matters involving the 1st to 3rd Respondent, the 1st to 3rd Respondent have now cut him off from every form of official communication and that the 1st to 3rd Respondent were indebted to him as he has not been paid his salary for some period.
Counsel posited that there is no nexus or relationship whatsoever between the Claimant and the 4th Defendant and the core of the Claimant’s case against the 4th Defendant is that it has in his possession money belonging to the 1st Respondent to 3rd Respondent.
Counsel contended that the question which then arises is whether a financial institution ought to be sued in every action relating to its customer and the answer is in the negative. He added that joining the 4th Defendant in the suit will only bring untold hardship to the financial institution who is made to expend money for issues it knows nothing about.
Counsel concluded that it is trite law that where no reasonable cause of action is disclosed against a Defendant, the court can on proper application of the party strike out the name of the party from the suit. He cited the cases of Labode v Otubu (2001) 7 NWLR (Pt.712) 283 Para. H and Nokia West Africa V. 2 Shotz (2016) LPELR-40189(CA).
In view of the foregoing, I have earlier reckoned that the Claimant, through his counsel posited that there is no opposition to the preliminary objection. The consequence of same is that the preliminary objection is to succeed on its own merit.
In view of the prayer sought by the 4th Defendant in notice of preliminary objection, the question for the determination of the preliminary objection is to wit:
Whether or not there is any reasonable cause of action making the 4th Defendant a necessary party in this suit.
In consideration of the sole issue, I am much of the same position with counsel to the 4th Defendant in regards to what has been said about cause of action. For want of emphasis however, the Supreme court in Rinco Const. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt.929)85 held that:
“Reasonable cause of action means a cause of action with some chances of success. 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 go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks. The word “reasonable” means fair, proper, just, moderate, suitable under the circumstances.” per TOBI, J.S.C. (Pp.14-15, Paras. E-A).
The import of the foregoing authority is that the Court has the obligation to look at the statement of fact before the court to find if there is any fact relating to the legal right of the Claimant, the obligation of the 4th Defendant in respect of such right and any infraction of the legal right of the Claimant by the 4th Defendant or failure of the 4th Defendant to fulfill the stated obligation. If the court finds that such right and obligation exist and the 4th Defendant has been alleged to have breached the obligation or violated the right of the Claimant, then the 4th Defendant would become a necessary party required to put up a defence against the remedy sought by the Claimant.
Before assessing the statement of fact in search of the right and obligation, it is apposite that I mention that a party is necessary for the determination of a suit if without such party being joined, the suit cannot be determined to a conclusion. The court in PANALPINA WORLD TRANSPORT LTD. v. J. B. OLANDEEN INTERNATIONAL & ORS. (2010) LPELR-2902(SC) held that:
“A necessary party to a proceeding is a party whose presence and participation in the proceeding is necessary or essential for the effective and complete determination of the claim before the Court. See In-Re Mogaji (1986) 1 N.W.L.R. (pt.19) 579.” Per Mohammed, J.S.C. (P.27, Paras.B-C).
That said, I have taken a careful look at the statement of fact as filed by the Claimant. Arising therefrom, the Claimant posited in paragraph 5 of the Statement of fact that the 4th Defendant is a financial institution that renders banking services to the 1st and 2nd Defendants with its headquarters at No.17 Kofo Abayomi street, Victoria Island Lagos as well as branches in several parts of Nigeria including that of Trans-Amadi Road, Garrison Junction, Port-Harcourt.
In addition to paragraph 5, the Claimant averred in paragraph 33 that at the time of filing this suit, the Defendants had no tangible asset in the country except a certain sum in an account with 3rd Defendant. The ‘3rd defendant’ is perhaps a typographic error meant to be 4th Defendant.
That notwithstanding, the two paragraphs are the only averments made in relation the 4th Defendant by the Claimant. The said averments discloses no rights of the Claimant which the 4th Defendant have breached and neither does it disclose any obligation of the 4th Defendant which the said 4th Defendant have failed to perform.
Consequently, without much ado, it is safe to say that no reasonable cause action is disclosed against the 4th Defendant by the Claimant and it simply means that the 4th Defendant is not a necessary party required for the complete, final and effectual determination of the substantive suit.
In the final analysis, the sole issue is resolved in favour of the 4th Defendant/Applicant to the effect that there is no reasonable cause of action making the 4th Defendant a necessary party in this suit.
Consequent upon the foregoing resolution, the 4th Defendant/Applicant is entitled to the prayer as sought and the name of the 4th Defendant is accordingly struck out of this suit.
Ruling is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE
