IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E.N. AGBAKOBA
DATED 13TH MARCH 2015 SUIT NO. NICN/ABJ/261/2015.
BETWEEN:
ABDULAZEEZ MUSA……………………………… CLAIMANT
AND:
1) ROCKVIEW HOTELS LTD
2) NATIONAL UNION OF HOTEL PERSONAL SERVICES
WORKERS DEFENDANTS
REPRESENTION
OBIAYI EDHEFULE for the claimant
TONY OGBULAFOR for the 1st defendant with EZINNE DURUJI
R U L I N G
The claimant, by a General Form of Complaint filed on 25th August, 2015, with the accompanying frontloaded documents, approached the Court for the following reliefs:
- i)An Order of this Honourable Court directing that this case even though instituted on representative basis, be and is hereby consolidated in one case
- ii) An Order of this Honourable Court directing this 1st defendant to pay one year gross salary to all the affected staff as compensation.
iii) An Order of this Honourable Court directing the 1st Defendant to pay their salaries from the date of unlawful terminated to date of settlement.
- iv) An Order of this Honourable Court directing the 1st defendant to pay the Claimants for breach of contract
- v)An Order of this Honourable Court directing the 1st and 2nd Defendants to jointly pay the sum of N2, 500,000.00 being the cost accessed for processing this case.
The Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 22nd February, 2016 praying the Court that the claimant’s action be struck out for being incompetent, an abuse of court process and frivolous.
GROUNDS FOR THE OBJECTION
- The Claimant’s action is an abuse of due process of court
- The Honourable lacks jurisdiction to hear it
3 It is res judicata
- Counsel’s Stamp and seal were not affixed to Complaint and all other processes thereto.
The 2nd defendant raised the sole ISSUE
Whether by the Complaint there is a cause of action against the 2nd Defendant?
Learned Counsel for the 2nd defendant submitted that the 2nd Defendant cannot be subjected to the cost and time of litigation merely on the allegation in Paragraph 36 of the Statement of Facts that both the 1st and the 2nd Defendants have not communicated the terms of settlement and to him and others. Even if the allegation is correct, which is not conceded, the Claimant has not pleaded or shown any law or duty owed him as a member of the union breached to make the union liable to be sued. He stated that the instant suit is an abuse of court process as it is employed to irritate and annoy the 2nd Defendant and that it is clear that the Claimant and the other 42 persons by their action are saying that they have rejected the settlement and are keen on pursuing their case as individuals.
On the issue of affixing the stamp and seal of the Claimant’s counsel, counsel submitted that the position is today settled as it is now mandatory. That non-fixing of stamp and seal on a legal document by counsel renders it bad in law and liable to be struck out. GENERAL BELLO YAKI & ANOR. V. SENATOR ABUBAKAR BAGUDU & ORS (2015)10— 11 MJSC 129 at 176 per Peter-Odili, JSC.
The claimant filed a WRITTEN ADDRESS IN REPLY TO THE 2ND DEFENDANT/OBJECTOR’S PRELIMINARY OBJECTION on 3rd May, 2016.
Wherein they raised the 5 ISSUES
- Whether the Claimant’s action is an abuse of due process of court.
- Whether this Honourable Court lacks jurisdiction to hear and determine this case.
- Whether the Claimant’s action is res Judicata.
- Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector.
- Whether failure to affix Counsel’s NBA stamp and seal is fatal to this case.
ON ISSUE 1
Whether the Claimant’s action is an abuse of due process of court.
Learned Counsel to the Claimants Tony Ogbulafor Esq. submitted that the Claimants’ action is not an abuse of court process as abuse of court process has been defined as “multiplicity of actions which involve the same parties and the same subject matter.” Pavex International Co. Ltd. V. IBWA (1 994)5 NWLR (pt.347) 685; Okorodudu v. Okoromadu (1977)3 SC 21 at 32, lines 4-14; COP v. Fasheun (1997)6 NWLR (pt.507) pp. 180-1 85. He submitted that Desirable parties have been defined as “those who have an interest or who may be affected by the result.” Green v. Green (1987) 3 NWLR (PT. 61) 480 Ratio 13.
Claimant Counsel urged the court to so hold and discountenance the 2nd Defendant/Objector’s submission that its joinder in the suit amounts to abuse of court process, resolving issue one in favour of the Claimant.
ON ISSUE 2
Whether this Honourable Court lacks jurisdiction to hear and determine this case.
Counsel to the claimant also submitted that one of the factors determining the Jurisdiction of courts is that the proper parties are before the courts. CBN V. SAP NIG LTD (2005)3 NWLR (pt.911) paragraph 152, Ratio 2; MADUKOLU V. NKEMDILIM (1962)2 SCNLR 341; AJAO V. OBELE (2005)5 NWLR (pt.918)400 at pp. 414-415 paragraph 4-C Ratio 11; SKEN CONSULT V. UKEY (1981)1 SC6. He argued further that the 2nd Defendant/objector’s role in the “out of court settlement” shows its interest in the matter, urging the Honourable Court to assume Jurisdiction to hear and determine this case.
ON ISSUE 3
Whether the Claimant’s action is res Judicata.
Claimant’s Counsel submitted that this action is not res Judicata as the Law is trite that for an action to be res Judicata all the following pre-conditions must be established; and unless they are established, the plea of res Judicata cannot be sustained:
- The parties or their privies involved in both previous and present proceedings are the same;
- That the claim or issue in dispute in both proceedings is the same;
- That the res or that the subject matter of the litigation in the two cases is the same;
- 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 is a court of competent jurisdiction.OKE V. ATOLOYE (1985) I NWLR (pt.15) 241 at 260; YOYE V. OLABODE & ORS. (1974) 1 All NLR (pt.2) 118 at 22; FADIORA V. GBADEBO (1978) 3 SC 219 at 229.Counsel to the claimant further submitted further that the onus of proving the plea of estoppel res Judicatum is on the party who sets it up as a defence. Achiakpa v. Nduka (2001) 7 SCNJ 586 at 601; S.131 (1) of the Evidence Act 2011 as amended.
It is Claimant’s counsel’s submission that the Law is trite that an issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the court must be deemed abandoned. I. K.A. ONAMADE V. AFRICAN CONTINENTAL BANK LTD (1997) 1 NWLR (Pt. 480)123; LEMBOYE V. OGUNSUJI (1990) 6 NWLR (Pt.155)210; AJIBADE V. PEDRO (1992)5 NWLR (pt.241) 257; ARE V. IPAYE (1 986)3 NWLR (Pt.29)415.
ON ISSUE 4
Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector.
Counsel to the claimant submitted that the principle guiding the award of cost is that cost is awarded as an indemnity to the person who has suffered some loss and that once the act of damnification is found, then, costs follows events. Furthermore, that the essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Reg. Trustees of Ifeloju v. Kuku (1991) 5 NWLR (pt. 189) 65 Ratios 13 & 14.
ON ISSUE 5
Whether failure to affix Counsel’s NBA stamp and seal is fatal to this case.
Claimant counsel contended that failure of Claimant’s Counsel to affix his NBA stamp and seal does not render the action incompetent that the use of NBA stamp and seal is a condition precedent and as such the grant of their application will not prejudice the 2nd Defendant/Objector in any way.
The 2nd defendant’s in reaction filed a REPLY ON POINTS OF LAW BY COUNSEL FOR 2ND DEFENDANT FOR THE NOTICE OF PRELIMINARY OBJECTION filed on 13th May, 2016.
On the Claimant’s reliance in the Supreme Court decision in GREEN V. GREEN (1987) 3 NWLR (Pt. 61) 480 counsel submitted that there are no facts for the decision to apply in this case, stressing that decisions of Court are based on facts. He argued that the submission of the Claimant on the issue of wrong joinder of the 2nd Defendant is grossly misplaced as its basis is false and non-existent and ought to be discountenanced by the Court as one cannot put something on nothing and expect it to stand, for it will surely collapse. MACOY V. UAC (1962) AC 152 at 160, (2000) 15 WRN 185.
On claimant’s issue 2, counsel submitted that jurisdiction is always founded on a true state of facts in a matter, which is not the position here. It is counsel’s submission that where due process is not followed in commencing an action, it will rob a Court of law the requisite jurisdiction to hear and determine the matter. M.ADUKOLU VS. NKEMDILIM (2001) 46 WRN 1 at 13. He argued that the submission of claimant’s counsel thus: “…………. that the use of NBA stamp and seal is a condition precedent……………..”, is an admission against interest and that the legal implication or effect of admission against interest is stated by the Court of Appeal in J. A. ADEMOYE & ORS V. NIGERIA MARITIME ADMINISTRATION AND SA1tW AGENCY (NIMASA) (2013) 48 WRN 36 at 55— 56. He contended that the Claimant’s counsel having admitted that it is a condition precedent, the Claimant has no defence and that being a condition precedent, it naturally follows that non-compliance with the provision to affix the NBA stamp and seal is fatal to a case. It renders a suit a nullity. Rule 10(1) of Legal Practitioners Rules of Professional Conduct; FBN PLC & ORS V. M NJAWADA (2012) 5 SC (Pt. 111), per Onnoghen, JSC. Counsel argued, noting that the key word in the rule is ‘shall’ which denotes mandatoriness. ENGR CHARLES UGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR [20071 31 WRN I at 65 at lines 30 – 45; FIRST BANK OF NIGERIA PLC & ORS V. SALMAN MAIWA (2013) 5 NWLR (Pt. 1348) 444 at 483 Paras B — C, per Fabiyi, JSC.
On 9th February 2017 parties adopted their written addresses and adumbrated their respective positions.
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. I shall adopt the issues as formulated by the claimant’s five (5) issues as the issues for determining this application;
- Whether the Claimant’s action is an abuse of due process of court.
- Whether this Honourable Court lacks jurisdiction to hear and determine this case.
- Whether the Claimant’s action is res Judicata.
- Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector.
- Whether failure to affix Counsel’s NBA stamp and seal is fatal to this case.
As regards issue 1, 2 and 3 the defendants in raising their objection argued that the
claimants had not established a cause of action against the 2nd defendant and that the
matter was res judicata hence the abuse of due process. The defendants have argued that
the averment of the claimant in paragraph 36 ‘that both the 1st and the 2nd
Defendants have not communicated the terms of settlement and to him and others’ and
Relief v; An Order of this Honourable Court directing the 1st and 2nd Defendants to jointly
pay the sum of N2, 500,000.00 being the cost accessed for processing this case.
The position of the law as regards reasonable cause of action is that A cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitled the plaintiff to succeed that the defendant has the right to traverse. COMRADE ISHOLA ADESHINA SURAJUDEEN v. MR. ANTTHONY NTED & ANOR. Unreported Suit No. NICN/LA/114/2013 ruling delivered on July 10, 2014.
See also S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431. Where the court defined Cause of action as “the fact or facts which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to judicial relief. A cause of action is the right to enforce presently a cause of action … it is an aggregate of facts and circumstances giving rise to the right to file a claim in court for a remedy. It is the factual situation which a plaintiff relies upon to support his claim…” Relying on EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1; ASABORO v. PAN OCEAN OIL (NIG.) LTD. (2006) 4 NWLR (PT. 971) 595.
Also in EDMUND v. NIGEIAN CUSTOMS SERVICE BOARD (2014) 48 NLLR (PT. 157) 401 NIC @ 407. It was held that “a cause of action consists of two elements to wit:
(a) The wrongful act of the defendant which gives the plaintiff his cause of complaint.
(b) The consequential damage.
And this court in the case of NNOSIRI & ORS. v. EASTERN BULKCEM CO. LTD. (2014) 44 N.L.L.R. (PT. 138) 113
It was held that “in determining whether or not a suit should be struck out due to non-disclosure of cause of action, the court must restrict itself to the facts pleaded in the Statement of Claim without resort to any extraneous facts….” MOHAMMED v. BABALOLA SAN (2011) LPELR-CA, per Tsammani, JCA referred to.] P. 136, paras. B-F.
See also AG, FEDERATION V. AG, ABIA STATE & ORS [2001] 11 NWLR (PT. 725) 689 AT 733. The likelihood of success of the claimants case not a relevant consideration in determining a cause of action.
Considering the above and the state of the pleadings I find that the claimants having made the claim against the 2nd defendant would in law be required to prove same by evidence, at this stage of the instant case, I find that in line with the Supreme Court authority that is the prerogative of the plaintiff to determine the defendant in a suit. CHIEF EMMANUELBELLO Vs. INEC & 2ORS [2010] 2-3 SC (PT. II) 128, I resolve this issue for the claimant.
The defendants also raised the issue of abuse of process and res judicata, the position of the law is as was stated in FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 “Where a party improperly uses the judicial process, intentionally in order to irritate and annoy his opponent, it can be said that such amounts to an abuse of the process of the Court”. AFRICAN REINSURANCE CORP. v. JDP CONSTRUCTION NIG. LTD. (2003) 2-3 S.C. 47; (2003) 13 NWLR (PT. 838) 609 @ 635
Also in IKEME v. VC, UNIVERSITY OF NIG. & ORS. (2014) 40 NLLR (PT. 123) 466 NIC @ 470 this court also held that the fundamental criteria for determining that a case is an abuse of process is that there must exist a multiplicity of suits and such multiplicity of suits is intended to annoy or harass the opponent by so doing or temper with the judicial process. OGOJEOFOR V. OGOJEOFOR (2006) 3 NWLR (PT. 966) 205 @ 220; KOTOYE v. SARAKI (1992) 9 NWLR (PT. 264) 156 @ 188-189
This court went on in IKEME CASE Supra to state 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.
Also a requirements for the argument of doctrine of Res Judicata, is that as the claimant stated, certain pre-conditions must exist;
- The parties or their privies involved in both previous and present proceedings are the same;
- That the claim or issue in dispute in both proceedings is the same;
- That the res or that the subject matter of the litigation in the two cases is the same;
- 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 is a court of competent jurisdiction.OKE V. ATOLOYE (Supra); YOYE V. OLABODE & ORS. (Supra); FADIORA V. GBADEBO (Supra).
See also MALLAM YUSUF JIMOH & ORS. v. MALLAM KARIMU AKANDE & ANOR. (2009) 5 NWLR (PT. 1135) 549 @ 575, PARAS. D-F; 557, PARAS. C-D; 578, PARAS. B-D.
In the instant case the 2nd defendant, alluded to a consent judgement obtained in this court but failed to furnish the court with a copy of the said judgement to enable the court determine the question of Abuse of process, or consider whether the necessary pre condition to res judicata have been established, more so as the Supreme Court has held that the mere inclusion of a new defendant does not necessarily operate as a bar to res judicata. DONBRAYE v. PREYOR (2015) ALL FWLR (PT. 774) 127 @ 168, PARAS. A-H, per Yakubu, JSC @ PARA. E.
I find that the 2nd defendant has not presented this court with sufficient evidence to support these issues, hence these issues being unsubstantiated accordingly fail.
As regards issue 4; Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector. The question as to whether the claimant is entitled to claim or can claim cost from the 2nd defendant I find is a triable issue not one capable of determination in limine. This is a matter to be proved by trial in the circumstances of this case.
Issue 5, is whether failure to affix Counsel’s NBA stamp and seal is fatal to this case. This matter has been long established that the absence of the stamp and seal is merely voidable. See the case of SUIT NO: NICN/CA/47/2015 MR JAMES AHIDO ENYIA Vs. HON. JACOB OUT ENYA delivered on 21ST APRIL 2016 Where court considered the voidability of processes filed without the proper stamp and seal in this court and stated as follows “in NICN/UY/04/2015 INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors Vs. delivered on 16th February 2016 and NICN/AK/22/2015 CHIBUZOR ONYE-NSO Vs. FIRST MAXIMUM POINT INDUSTRIES LIMITED delivered on the 9th February 2016, considered that the National Industrial Court is not a court cut out for highly technical preserves especially as the court had taken judicial notice of the fact that many legal practitioners where yet to obtain the said stamp for sealing in line with the rules.
This position stems from the practice direction notification issued by the President of this Court that evidence of Nigeria Bar Associations payment should be presented in lieu of the stamp and seal, thus the court has variously held for the time being at least the absence of a stamp and seal is voidable. The court went on in INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors to hold that “the document could be saved and its signing and filing regularized by affixing the approved seal and stamp on it. That failure to affix the stamp does not render the process incompetent but irregular or voidable”. The court went on to extend time within which the party must affix the said stamp and seal accordingly.
In view of the above I find that the absence of a seal is not fatal to the claimants case.
All in all I find that the 2nd defendant’s preliminary objection lacks merit and is hereby struck out,
This is the court’s ruling and it is hereby entered.
……………………………………
Hon. Justice E. N. Agbakoba
Judge.
The defendants raised their preliminary objection on the grounds that
RESEARCHED AUTHORITIES
On Impropriety of passing on the burden of solicitor’s fees on the opponent and On Whether solicitor’s fees can be claimed as part of damages
It is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party. It is an unusual claim and it is difficult to accept in this country as things stand today for party claiming solicitor’s fees from the opponent. The issue of damages as an aspect of solicitor’s fees is not on that lends itself to support in this country. In the instant case, the claimant claimed the sum of #3, 000, and 000.00 as legal fees and also as general damages and the situation is worse because the claimant did not give any evidence on the amount that his solicitor is claiming. S.P.D.C. v. OKONEDO (2007) ALL FWLR (PT. 368) 1104 @ 1137-1138, PARAS. E-D; NWAJI v. COASTAL SERV. (NIG.) LTD (2004) 11 NWLR (PT. 885): (2004) LPELR – SC.151/1999; (2004) 18 NSCQR 895 @ P. 18, PARAS. B-E referred to.]
MEGA PROGRESSIVE PEOPLE’S PARTY (MPPP) V. INDEPENDENT NATIONAL
ELECTORAL COMMISSION & 3 ORS (NO.1) (2015)18 NWLR (1491)251, where Per I.T.
Muhammad held that;
This issue of bar stamp raised by Dr. Ayeni is a circular which has been issued by the Hon. Chief Justice of Nigeria to all Heads of Courts for the betterment of Legal Practice in Nigeria. The circular has not metamorphosed
