IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: THE HONOURABLE JUSTICE E.N. AGBAKOBA
DATE: 6TH MARCH. 2017 SUIT NO. NICN/ABJ/356/2016
BETWEEN:
BARRISTER AHMED ABUBAKAR ……………………… CLAIMANT
AND:
- JAIZ BANK PLC
- HADIZA I. BALA DEFENDANTS
- ZARA I. MUSA
REPRESENTATION
- U. J. UDOH for the claimant
- A. MUSTAPHER for the 1st2nd and 3rddefendants
R U L I N G
The claimant, by a General Form of Complaint filed on 12th October, 2016, with the accompanying frontloaded documents, approached the Court for the following reliefs:
- A DECLARATION that the purported Letter of Termination of the Claimant’s employment dated 23rd August, 2016 is unconstitutional, illegal, unlawful, irregular, null and void because it was not issued and or signed by the appropriate authority as required under the contract of employment.
- A DECLARATION that the 2nd and 3rd Defendants unlawfully acted in procuring the breach of the claimant’s contract of Employment with the 1st Defendant by issuing the letter of “Advice” dated 23rd August, 2016 purporting the terminate the employment of the Claimant with the 1st Defendant “effective immediately” when they have no powers under the claimant’s contract of Employment with the 1st Defendant, to do so.
- A DECLARATION that the purported termination of the Claimant’s Contract of Employment for the stated false specific reasons: “The review of staff performance Bank wide by the appraisal committee and the review of your personal record” by the Defendants is not in accordance with the procedure laid down in the Terms and Conditions of the Claimant’s employment, the rules of natural justice and the Claimant’s right to Fair Hearing and is therefore illegal, unlawful, irregular, unconstitutional, null and void and of no effect whatsoever.
- A DECLARATION that the Claimant is entitled to continue to enjoy the existing loan facilities granted to him by the 1st Defendant by virtue of being a staff of the 1st Defendant, at the agreed rate and based on the terms and conditions upon which the facility were granted and it shall be unlawful or illegal for the Claimant or its Agents to vary, deny or terminate the running facilities of the Claimant until the final determination of this suit.
- AN ORDER of this Honourable Court setting aside the purported “Termination of Employment’ of the Claimant from the employment of the 1st Defendant through the 2nd and 3rd Defendants memo dated 23rd August, 2016, based on the false allegation that the Claimant’s performance was adjudged satisfactory and excellent in his latest staff appraisal, prior to the unlawful termination wherein the Claimant scored 19 1.10% out of the possible 210.00 performance measurement rating (Grade A-Excellence Rating).
- INJUNCTION restraining the 2nd and 3rd Defendants from procuring the breach of Claimant’s employment with the 1st Defendant.
- AN ORDER REINSTATING the Claimant to his employment, the office of ASSISTANT MANAGER of the 1st Defendant forth with.
- AN ORDER compelling the 1st Defendant to pay all outstanding salaries and allowances due to the Claimant from the 23rd August, 2016 to the date of Judgment and thereafter 13% interest per annum until the payment is effected.
- AN ORDER of this Honourable Court setting aside the “Caution Letter” issued by HadizaBala, Manager, Human Capital Management Department and Zara I. Musa, Head, Human Capital Management of the Defendant an Internal Memo dated 26th September 2014 being a contravention of Section 12 particularly 12.3.2., 12.3, 12.10 and 12.11 (page 68-84) Jaiz Bank PLC Human Capital Management Policy Manual and Employee Handbook as null and void and of no effect whatsoever and cannot form part of any present and future reference or consideration by the Bank or any other party
- AN ORDER of this Honourable Court setting aside the purported “Final Warning Letter” issued by HadizaBala , Manager, Human Capital Management Department and Zara I. Musa, Head, Human Capital Management Department of the 1st Defendant via an Internal Memo dated 29th February 2016 being a contravention of Sectionsl2 particularly 12.2, ,12.3.2, 12.3.4. , 12.10, 12.11, 12.12, 12.13. 12.4, 12.7, 12.7.1 (pages 64-8 1) 1st Defendant’s Human Capital Management Policy Manual and Employee Handbook as null and void and of no effect whatsoever and cannot form part of any present and future reference or consideration by the Bank or any other party.
- GENERAL AND PUNITIVE DAMAGES of N500, 000,000.00 (Five Hundred Million naira) only against the 2nd and 3rd Defendants for procuring the Breach of Claimant’s contract of Employment.
- N3, 500,000.00 COST of the suit.
ALTERNATIVELY
- A DECLARATION that the purported Letter of Termination of the Claimant’s employment dated 23rd August, 2016 is unconstitutional, illegal, unlawful, irregular, null and void because it was not issued and or signed by the appropriate authority as required under the contract.
- 2. A DECLARATION that in purporting to terminate the Claimant’s employment for the stated specific reasons: “the review of staff performance Bank wide by the appraisal committee and the review of your personal record”, the Defendants acted in breach of the rules of Natural Justice and the Claimant’s Constitutional Right of Fair Hearing by virtue of the provisions of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
- GENERAL AND SPECIAL DAMAGES of the total sum of N295,956,608.56 (Two Hundred and Ninety Five Mil1ion, Nine Hundred and Fifty Six Thousand, Six Hundred and Eight Naira fifty Six Kobo) for breach of the terms of contract of employment leading to the unlawful Termination (for false and/or nonexistent stated specific reasons) and outstanding entitlements, salaries and allowances due to the Claimant from the 23rd of August, 2016 as contained in the table of emoluments along with the Claimant’s status as Assistant Manager effective 1st January, 2015 to date of Judgment.
- 13% interest rate per annum on the Judgment sum until the Judgment sum is paid.
PARTICULARS OF SPECIFIC DAMAGES
The sum of N195, 956,608.56 (One Hundred and Ninety Five Million, Nine Hundred and Fifty Six Thousand, Six Hundred and Eight Naira, Fifty Six Kobo) on the basis of the Claimant’s last salary increment effective 1st January, 2015, being the sum of N8, 164,858.69 (Eight Million, One Hundred and Sixty Four Thousand Naira, Eight Hundred and Fifty Eight Naira Sixty Nine Kobo) multiplied by Twenty Four Years (24) Years from the 23rd August, 2013 till the 23rd August 2041 (being 24 Years) when the Claimant could have lawfully retired and/or disengaged from the employment of the Defendant voluntarily. As 23’ August, 2016 the Claimant is only 35 years old and has about 25 years of unexpired services years under the employment contract with the Claimant. The retirement age of the Claimant is fixed for 60 years as per section 14.7 of the HCMMD.
ALTERNATIVELY
The sum of N 680,404.10 on monthly basis from the 23rd August, 2016 until the date the final the judgment on this matter is delivered, representing the gross monthly income accruable to the Claimant on monthly basis (net of any statutory deductions, which Defendants had stopped remitting 23rd August, 2016) receivable by the Claimant if he was allowed to continue with his employment with the Defendants as an Assistant Manager.
N8, 164,858.69 /l2months = N 680,404.10 x for judgment is delivered every month until
- 13% Court Judgment interest rate on alternative relief 3 per-annum until the judgment debt is liquidated.
- N200, 000,000.00 (Two Hundred Million Naira)Damages for Libel occasioned the claimant by the Defendants and their servants, agents and privies in the cause of occasioning the breach of contract of employment.
- RETRACTION AND APOLOGYof the offensive words complained of herein as contained in the purported letter of termination of employment dated 23rd August, 2016, to be published in the Guardian Newspaper and Daily Trust Newspaper, twice with prominent headlines.
- PERPETUAL INJUNCTIONrestraining the Defendant whether by itself, servants, privies, agents, whomsoever and however defined from further publishing defamatory words of and concerning the person of the Claimant either by way of his employment and/or generally.
- N3, 500,000.00 (Three Million, Five Hundred Thousand Naira)only COST of this action.
The 2nd and 3rd defendants filed a MOTION ON NOTICE on 6th December, 2016 accompanied by a 16 paragraph affidavit in support deposed to by Abdullah Abdulmumeen Duro, praying the Court for An order of this Honourable Court striking out the names of the 2ndand 3rdDefendants/Applicants from the suit.
GROUNDS OF THE APPLICATION
- There is no cause and/or reasonable cause of action disclosed by the Claimant/Respondent against the 2nd and 3rd Defendants/Applicants.
- The 2ndand 3rdDefendants/Applicants are improper and unnecessary parties to the Claimant/Respondent’s suit.
iii. The Claimant/Respondent’s suit is brought mala fide against the 2ndand 3rd Defendants/Applicants.
- The suit of the Claimant/Respondent is, in the circumstance, only maintainable against the 1st Defendant as the 1st Defendant is the principal/employer of the 2ndand 3rdDefendants/Applicants who are mere agents of the 1st Defendant.
WRITTEN ADDRESS IN SUPPORT OF THE MOTION
‘Whether from the totality of the averments of the Claimant/Respondent as contained in his Statement of Facts, this suit is sustainable in law against the 2nd and 3rd Defendants/Applicants who at all material times are agents of a known and disclosed principal and acted under the authority of the 15th Defendant and in the cause of their duties to the 1st Defendant.
Learned Counsel to the Defendants submitted that the suit of the Claimant/Respondent is not sustainable against the 2nd and 3rd Defendants/Applicants for failure to disclose any cause and/or reasonable cause of action in her thirty one (31) paragraph Statement of Facts that is sustainable against the 2nd and 3rd Defendants/Applicants. MILITARY GOVERNOR OF ONDO STATE & ORS. VS. JAMES OLUGUNJU KOLAWOLE & ORS. (2008) 35 NSCQR, 506 AT PAGE 534, per Tabai JSC.
On the definition of cause of action, counsel relied on the following authorities: AKILU V. FAWEHIMI (NO. 2) (1998) 2 NWLR (PT.102) P122 @169, per Karibi Whyte JSC; AMODU V AMODU (1990)5 NWLR PT 150 P. 356 @367; HERNAMAN V. SMITH (1855) EXCH. 659 @ 666; ABUBAKAR VS. BEBEJI OIL LTD. (2007) 29 NSCQR. P 1634.He submitted that the Claimant/Respondent in his Thirty-One (31) paragraph Statement of Facts admitted that the 2nd and 3rd Defendants/Applicants are employees of the 1st defendant, thus that the law is trite that admitted fact need no further proof. AYOKE VS. BELLO (1992) 10 NWLR (PT. 218) 380. Arguing that by the averment and admission of the Claimant/Respondent that the 2nd and 3rd Defendants/Applicants are employees of the 1st Defendant, the provisions of Section 37 and 38 (1) of the Companies and Allied Matters Act, LFN, 2004 preclude the 2nd and 3rd Defendants/Applicants from being sued by the Claimant/Respondent or any other person or entity for that matter for acts and deeds they carried out under the authorization of the 1st Defendant/Applicant in the course of their duties.Furthermore, that by the clear provision of Section 63 (1) the Companies and Allied Matters Act, LFN, 2004the Claimant is allowed in law to proceed against the 1st Defendant only for every perceived, real or imaginary infraction of his contract with the 1st Defendant irrespective of the roles played by the 2nd and 3rd Defendants/Applicants in the course of discharging their daily duties as employees/agents of theist Defendant.
He submitted that the direct import, implication and intendment of the provisions of CAMA particularly, Section 63 (1), is that the fiction of corporate legal personality insulates members, directors and officers from, legal proceedings for the individual role they played towards the attainment of the objective of the corporate entity. SALOMON VS. SALOMON (1897) AC 22.
It is counsel’s submission that the 1st Defendant being an abstract but a juristic personality can only act through her officers such as the Managing Director of the 1st Defendant, 2nd and 3rd Defendants/Applicants who are employees, agents and servants of the Defendant. KATE ENTERPRISES LTD VS. DAEWOO (NIG.) LTD (1985) 2 NWLR (PT 5) 116.Furthermore, that the 2nd and 3rd Defendants/Applicants are improper and unnecessary parties to this suit as they are mere employees, agents and servants of the Defendant. AYODELE JAMES VS. MID-MOTORS LTD (1978) 11-12 SC, 31 AT 68, per Aniogolu, JSC.Defendant Counsel further submitted that the law is settled that there cannot be a cause of action against the agent of a disclosed principal as the Claimant/Respondent in paragraph 15 of his Statement of Facts clearly admitted that the 2nd and 3rd Defendants/Applicants are agents of the 1st Defendant. Okolo vs. Union Bank of Nigeria Plc. (2004) 3NWLR (Pt. 859) 87.
Furthermore that where the principal of an agent is known and disclosed, the correct party to sue for anything done or omitted to be done by the agent is the principal. LEVENTIS TECH. LTD. VS. PETROJESSICA ENTERPRISES LTD (1992) 2 NWLR (PT 224) 459 AT 468 PARAS A-B.
The Claimant filed a 3 paragraph COUNTER- AFFIDAVIT on 9th January, 2017 deposed to by Esther Michael.
Supported by a WRITIEN ADDRESSwherein the claimant raised one sole ISSUE
Whether this application is competent, prima-facie and assuming (without conceding) that it is, is it true that the Statement of Claim does not disclose any cause of action against the Applicants and as a result they are not necessary parties to this case?
Learned Counsel to the Claimant, submitted that the Court lacks the jurisdiction to entertain this motion because the purported applicants have not properly appeared before this court as required by the law. ANON &ORS V. ELEMO & ORS (1983) 1 SC P13, Iguh, J.S.C.He submitted that proper appearance before this court as required by Order 8 (1) of NIC Rules is condition precedent that cannot be waived and that by this application they have divested themselves as parties as presumed by the law, even before asking the court to do so. Therefore, that amounts to an abuse of court process. Ajewole V. Adetimo (1994) 3 N.W.L.R (pt. 335) P. 739 at 577, per Mukhtar, J.C.A (as he then was).He argued further that contrary to the instant application, an application must be brought under appropriate rules of court. C.C.B v. M.C.L. (2000) 6 W.R.N. 104 at 112, per Olagunju, J.C. A.
It is counsel’s contention that different considerations may arise if what the Applicants are challenging is a defective Originating processes and/or service of same on them, rather, that in the instant application they are attacking the merits of the case against them. Thus, that the options open to a defendant who intends to object to the regularity of proceedings against him was stated in the case of ADEWUNMI V. A.G ONDO STATE (1996) 8 NWLR (PT. 464) P. 73. AT 85 — 86, per Nsofor, J.C.A.
Claimant’s Counsel submitted that a cause of action is the entire set of circumstances giving rise to an enforceable claim and is also a combination of the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the Plaintiff his cause of complaint and the consequent damage. It is every fact that it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the court. SAVAGE & ORS. V. UWAECHIE (1972) 3 SC 214, 2216.Furthermore, that these facts or circumstances that enables a Plaintiff to make a claim against a defendant can only be garnered from the Plaintiff’s writ of summons, particulars of Claim or Statement of Claim and clearly not from the statement of defence (if any). FADARE V. A.G. OYO STATE (1982) NSCC P. 52 AT 60; THOMAS V. OLUFOSOVE 91986) 1 NWLR (PT. 18) P. 669.Again, that it is immaterial or irrelevant that the claim appears weak or not likely to succeed. S. G.B LTD V. BURAIMOH (1991) 1 N.W.L.R (PT. 168) P. 428 AT 436where Sulu-Gambari J.C.A.
Counsel to the Claimant further submitted that at law, procuring a breach of contract which forms part of the allegations against the Applicants is an actionable tort, separate from breach of contract of employment alleged against the 1st Defendant. TORGUAY HOTEL CO. LTD V. COUSINS (1969) 2 CH. 106, 137 — 138 (relied upon by Ogundare J.C.A (as he then was) in T.A.S.A LTD V. I.A.S (ARGO AIRLINES (NIG) LTD (1991) 7 NWLR (PT. 202) P. 156 AT 173, per Lord Denning.
Learned Claimant’s Counsel also submitted that the Applicants are both Necessary and Proper parties to this case. OLUJITAN V. OSHATOBA (1992) 5 NWLR (PT 24) P. 326 AT 335, per Musdapher, J.C.A.He submitted that the definition of a party under Order 8 Rule 1(1) (supra) and section 45(1) of NIC Act (supra) by scope and purport are wider than that envisaged in the conventional courts. And that the law and the rules of practice meant for one court, cannot be binding on other court, that Courts must therefore restrict themselves to the express provisions of the specific rules regulating their Courts. NNEII V. CHUKWU (1988) 3 NWLR (PT. 81) P.184 AT 204; KOMONIBO V. N.A. (2002) 6 NWLR (PT. 672 P. 94 AT 117.
It is Claimant counsel’s submission that master and servant may be joint tort-feasors in cases of recovery of damages. IFEANVICHUKWU OSONDU & CO. LTD V. SOLEH &NEH (NIG) LTD (2000) 5 NWLR (PT. 656 (P. 322 AT 366, per Iguh, J.S.C. Submitting that a person will be joined as a party to an action if his presence before the court is necessary to enable the Court properly determine the matter before it once and for all, or where the person would be bound or is likely to be affected by the result of the decision of the court. Re Ojukwu (1998) 5 N.W.L.R (pt. 551) P. 673 at 683; Onabanjo V. Ewetuga (1993) 4 N.W.L.R (pt 288)445 at 458.
The 2ND AND 3RD DEFENDANTS/APPLICANTS’ REPLY ON POINT OF LAW AGAINST THE CLAIMANT/RESPONDENT’S COUNTER-AFFIDAVIT AND WRITTEN ADDRESS OF 9TH JANUARY, 2017 was dated and filed on 30th January, 2017)
Replying paragraphs 4.0 to 4.6 of the Claimant/Respondent’s Written Address, the 2 and 3rd Defendants/Applicants submitted that they are not proper and necessary parties to the Claimant/Respondent’s case.
Furthermore, that all of paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the Claimant/Respondent’s Statement of Fact and his reliefs Nos. 2, 3, 4, 6, 9, 10, and 11 on his Complaint and specific averments in paragraphs 15 – 28 which the Claimant/Respondent refers to as tort of inducing the’ breach of contract, etc. do not help his case as they are not included in the civil causes and matter upon which this Honourable Court would assume jurisdiction.Submitting that the 2nd and 3’’ Defendants/Applicants are not necessary parties to the dispute between the Claimant/Respondent and the 1st Defendant. OJOKOLO VS. GOVERNOR OF KEBBI STATE (2009) 11 NWLR (PT.1152) 394.
Arguing further that the dispute between the Claimant/Respondent and the 1st Defendant can be fairly adjudicated upon by this Honourable Court without the 2nd and 3rd Defendants/Applicants. GREEN vs. GREEN (1987) 3 NWLR (Pt 61) 480.
REPLY ON POINT OF LAW AGAINST THE CONTENT OF THE CLAIMANT/RESPONDENT’S COUNTER AFFIDAVIT
Counsel submitted that it is trite that an affidavit must not contain legal argument, conclusion or other extraneous matter. SECTION 115 (1) AND (2) of the EVIDENCE ACT, 2011; BAMAIYI VS. STATE (2001) 4 SC PT I AT PAGE 30. And that in the circumstance of breach of the provision of the Evidence Act, the proper order to make by the court would be to strike out the offensive paragraphs. BANQUE DE’ L’AFRIQUE OCCIDENTALE VS. ALHAJI BABA SHARFADI ORS. (1963) NRNLR 21.
On 6th February 2017parties adopted their respective written addresses and adumbrated their positions accordingly.
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 2nd and 3rddefendants application.
Before I delve in to the merits of the2nd and 3rddefendants application, it is necessary to address some of the questions raised by the counsel on both sides during with their submissions on the application.
The claimant counsel raised the contention, as to the competence of the defendants motion on two flanks: The first that the 2nd and 3rd defendants had not entered appearance contrary to Order 8 rule (1) and secondly that the 2nd and 3rd defendants processes were not duly stamped and sealed.
Now order 8(1) of the National Industrial Court Rules 2007 deals with filing a memorandum of appearance.
The 2nd and 3rd defendants filed their motion on notice on the16th December 2016, the claimant counter affidavit was filed 9th January 2017.
The position of the law as regards Appearance and filing of a memorandum of appearance and the implication of not filling a memorandum of appearance has been long settled in our jurisdiction. See the case of DIKE V. UBN (1987) 4 NWLR 958 AT 963 paras. G-C. per Onnoghen, JSC; Where the Apex Court held that ” the purpose of filling Memorandum of Appearance is to let the other side know that the writ of summons had been received but the action may be defended and the address for service of other documents be known to the other side or the address of the solicitor who is appearing for the defendant. Furthermore, the filing of an appearance is the strongest evidence that service has been effected the Defendant. SeeGUINNESS NIGERIA NIG. PLC V. UFOT (2008) 2 NWLR (PT. 2070) 51 (CA), EBE V. COP (2008) 4 NWLR (PT. 1076) 189 AT 211-212.
Order 8(1) provides that “Every person served with an originating process shall, within the days stipulated therein or if no day is stipulated within 14 days of the originating process file a Memorandum of Appearance in the Registry of the Court”
