IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 31ST MARCH, 2017 SUIT NO. NICN/ABJ/28/2015
BETWEEN:
- ALIYU SANI
- ZA IN A B D.
- ABDULLAWAL
- OLUWAFEMI SEGUN ISAAC
- ADIOYEA. MICHAEL
- AJIBOWOABIOLA
- OMILABU A. ABIODUN
- OBIANYOR OKEZIE PIUS
- AKAWO GWAMNA
- AMEH ECHE JAMES ………..……………… CLAIMANTS
- YASHIM MARY
- AGUSAH M. DIANA
- AFANGIDEH 0. PETER
- UDII-1 ALHAJI
- DESMOND OMOARURKE
- ATTAH E. AGNES.
- MBAFUW U. WILLIAMS
- FATILE E. OLAOLUWA
- JAMES UKPE
AND
- NATIONAL INSURANCE COMMISSION ……………………….. DEFENDANTS
- THE COMMISSIONER OF INSURANCE.
REPRESENTATION
- A. ARAOYEfor the claimants.
- A. OMOLUABIfor the defendant.
R U L I N G
The claimant, by a General Form of Complaint filed on 13th February, 2015, with the accompanying frontloaded documents, approached the Court for the following reliefs:
- AN ORDERof the Court directing the Defendants to define the status and or the relationship of the Claimants with the 1st Defendant.
- AN ORDERof perpetual injunction restraining the Defendants by themselves, agents, privies or any other person and or organization/institution from stopping the payment of the Claimant’s pension.
- The sum ofN10,000,000.00 (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.
Claimant’s Case
The cause of action is for definition of status of employment. The claimants are former staff of the defendant, who had been paying them their pension regularly until late 2014.
The Defendants brought a NOTICE OF PRELIMINARY OBJECTION filed on 13th April, 2015 and dated same day, deposed to by Paul Omoluabi, seeking for AN ORDER dismissing the Plaintiffs’ Suit in its entirety.
GROUNDS FOR THE APPLICATION
- The subject matter of this suit with same parties was adjudicated upon by court of competent jurisdiction.
- The cause of action of this suit arose in 2008, about 6 years ago as indicated in the originating process of the Plaintiffs.
- The Defendants (particularly 2nd Defendant) herein are Public Officers employed by Section 10 National Insurance Commission Act, 1997; Cap N53 LEN, 2004,
4 That Section 2(a) of the Public Officers Protection Act, Cap. P. 44. LEN, 2004, provides that this action be commenced within 3 months,
- 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.
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.
ON THE PRINICPLES OF RES JUDICATA
Learned Counsel P. O. Omoluome Esq. submitted that this suit is incompetent on the ground that it has breached the principle of estoppel per rem judicatam, in that, 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 there must be an end to litigation and litigants are expected to refrain from filing frivolous and vexatious suit which may amount to an abuse of court process. Simoh v Akande (2009) 5 NWLR (Part 1135) 549, 577 C-F. Per Chukwuma-Eneh, JSC.
ON THE STATUTE OF LIMITATION
It is defence counsel’s submission that the Defendants are “persons” covered by the Section 10 of the National Insurance Commission Act, LFN 2004 and that any action challenging the disengagement of any employee by the Defendants must comply by Section 2(a) of the Public Officers Protection Act, Cap. P. 44. LFN, 2004. Furthermore, that this present suit is no longer maintainable considering the interpretation of Section 2(a) of the Public Officers Protection Act, Cap. P. 44. LFN, 2004. Sanni v. Okene L.G (2005)14 NWLR (944) 60, 75-7611-C, per Rhodes-Vivour, JCA.
Counsel submitted that once a court has come to a decision that an action filed before it is statute barred, the order which the court is entitled to make, applying the decision of the supreme court per lguh, JSC IN IBRAHIM V JSC, KADUNA STATE & ANOR (1998)14 NWLR (PART 584)1 is one of dismissal.
ON ABUSE OF PROCESS
Learned Counsel for the defendants further argued that Court Processes are expected to be used bona fide, but that where a process is found to be an abuse of court process, it will be dismissed by the Court. Arubo & Ors v. Aiyeleru & Ors (1993) 3 NWLR (Part 280) 126, 1 42A-B, per Nnemeka — Agu, JSC; Onyeabuchi v. Independent National Electoral Commission & Ors (2002) NWLR (Part 769) 417, 441-442 G-A.
ON THE JURISDICTION OF THE COURT
Standing on the authority of Madukolu v Nkemdilim (1962) 1 ALL NLR 587, 594, Learned Defence Counsel submitted that this Honourable Court is deprived of jurisdiction to entertain this suit.
The Claimant’s filed a 10 paragraph COUNTER AFFIDAVIT on 4th May, 2015 and dated same day deposed to by Akawo Gwamna.
WRITTEN ADDRESS IN OPPOSITION TO THE DEFENDANTS/APPLICANTS NOTICE OF PRELIMINARY OBJECTION.
ISSUES
- Whether this suit as presently constituted is competent or properly constituted to warrant the court assuming jurisdiction to hear and determine same on the merits thereof?
- Whether this Suit as presently constituted is not frivolous, scandalous, vexatious and or otherwise an abuse of the process of the Court?
ON ISSUE 1
Whether this suit as presently constituted is competent or properly constituted to warrant the court assuming jurisdiction to hear and determine same on the merits thereof?
Answering in the affirmative, Learned Counsel to the Claimant A. A. Araoye Esq. contended that this line of argument is not only baseless but also misconceived. And that the doctrine of res judicata has no place in this case because for the doctrine to apply, parties must be the same, the subject matter must be the same as well, the cause of action in the earlier decided case must have arisen again in the later proceeding and finally that the judgment must be valid and subsisting. OLOYE VS. OLAYEMI (2013) 9 WRN RATIO 3 (pg.119) Lines 20-25. He argued further that once one of the ingredients of the doctrine is lacking in the proceedings, the doctrine of Res Judicata will not apply. MUTAIRU VS. ATOKE (2011) 43 WRN RATIO 4 (pg.117) Lines 10-30.
ON ISSUE 2
Whether this Suit as presently constituted is not frivolous, scandalous, vexatious and or otherwise an abuse of the process of the Court?
Learned Claimant Counsel submitted that in order to determine this issue properly, there should be the need to ascertain what the abuse of court processes connotes. SARAKI VS KOTOYE (1992) 3 NSCC @331; NTUKS VS. NPA (2007) 13 NWLR (Pt. 1051) 392 @419 — 420, per Niki Tobi JSC; TAIWO VS AKINBOLAJI (2011) 9 WRN RATIO 3 particularly @ (pg. 172) lines 15 – 25.
The defendants in reaction filed their REPLY ON POINTS OF LAW on 19th May, 2015.
ON WHO ARE THE PARTIES TO THIS SUIT
Learned Counsel relying on the Black Law Dictionary, 6th Edition, at page 1200, for the definition of “Privy”, submitted that the claimants in this suit were privies to the previous suit adjudicated upon by a court of competent jurisdiction.
ON TREATMENT OF FACTS PLEADED OR DEPOSED ON WHICH NO EVIDENCE IS LED
Defendant’s Counsel contended that the claimants’ depositions in their Counter Affidavit are false and lacks evidence to substantiate the facts deposed therein. The law is trite, that such facts deposed, are deemed abandoned. N.A.S. Ltd v. UBA Plc. (2005) 14 NWLRT (part 945), 436 C, per Akintan JSC.
ON PRESUMPTION OF WITHHOLDING EVIDENCE
That all of these evidences were withheld by the claimants. N.A.S. Ltd v. UBA Plc. (supra) 437 D-F, per Akintan JSC.
On the 9th February 2017 parties adopted their written address 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 application 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 defendants application.
Before I delve into the merit of this application it is necessary to restate the import of a Reply on point of Law at this stage. To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to re-argue or re beautify already stated submissions.
Having stated this now to the merits of the defendants objection;
The defendants objection is basically on two main planks Res Judicata and Statute barred; Public Officer’s Protection Act.
With regard to res judicata the defendant have argued that this suit is incompetent on the ground that it has breached the principle of estoppel per rem judicatam, having 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; FHC/ABJ/CS/2009. Arguing that where a process is found to be an abuse of court process, it will be dismissed by the Court. To the defendants the claimants in this suit were privies to the previous suit, as the names of the claimants were listed in the pre action notice of the former suit already adjudicated upon by a court of competent jurisdiction.
The claimants however maintain that the doctrine of res judicata has no place in this case because for the doctrine to apply, parties must be the same, the subject matter must be the same as well, the cause of action in the earlier decided case must have arisen again in the later proceeding and finally that the judgment must be valid and subsisting. To the claimant once one of the ingredients of the doctrine is lacking in the proceedings, the doctrine of Res Judicata will not apply. Arguing that a pre action notice cannot not be elevated to the status of a substantive suit and that the causes of action in both cases are not the same.
The position of the law in respect to a plea of Res Judicata has been well stated in the case of
OLOTU v. POWER HOLDING COMPANY OF NIGERIA (2014) 42 NLLR (PT. 132) 529 @ 534. Where this court held that “For a plea of estoppel to succeed, the following must be present, that is:
- a)The parties or their privies must be the same in both the previous and present proceedings;
- b)The res of the subject matter of the litigation in the two cases must be the same;
- c)The decision relied upon to support the plea of estoppel must be valid, subsisting and final; and
- d)The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.
All the above must be fully established before the plea can be sustained”. Also in DAUDA V. A.G. LAGOS 46 NSCQR 1. The Supreme Court held that “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 Court went on to hold 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 the case of A.G. NASARAWA V. A.G. PLATEAU 50 NSCQR 1 Where the Apex Court defined the meaning of Estoppel per rem judicata thus; “Otherwise known as estoppel by record ari
