EMGR. DR. EMANNUEL KENNETH UZOR -VS- EMGR. DR. EMANNUEL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY 19^TH JULY 2018 SUIT NO. NICN/OW/43/2017

BETWEEN:

EMGR. DR. EMANNUEL KENNETH UZOR……CLAIMANT/RESPONDENTS

AND

HON. MINISTER OF WORKS
FEDERAL CIVIL SERVICE COMMISSION
DIRECTOR, HUMAN RESOURCES DEFENDANTS/

MANAGEMENT, FEDERAL MINISTRY OF APPLICANTS

WORKS

REPRESENTATIONS:

I.C. ACHARA FOR THE CLAIMANT/RESPONDENT.
COUNSEL TO THE DEFENDANTS/APPLICANTS ABSENT.

CONTESTED RULING/JUDGMENT

INTRODUCTION

This suit was commenced via WRIT OF SUMMONS at the Federal High Court, Owerri Judicial Division on 15^th February 2015. It was subsequently transferred to this Court by order under the hand of Hon. Justice (Dr.) Nnamdi O. Dimgba on the 25^th May 2018 following the decision of the Court that it lacked jurisdiction and that it was the National Industrial Court that had jurisdiction over the matter. The Statement of Facts had not been filed in this Court as at the time the Motion challenging the jurisdiction of the Court to entertain this matter was brought. The reliefs claimed in the extant Statement of Claim dated 13^th February 2012 and filed at the Federal High Court on15th February 2012 are as reproduced hereunder:

a)A Declaration that the purported notification letter dated 23/1/2012 is null and void and of no legal effect against the plaintiff.
b)A Declaration that the plaintiff having not attained the age of 60 years or 35 years in service is not due for retirement following the civil service rules.
c)Injunction restraining the defendants, their agents, privies from implementing the contents of the said letter dated 23/1/2012 or any other letter inconsistent with the civil Service Rules for retirement on age or years of service or retiring the plaintiff from the Federal Civil Service until he is due for retirement by age or year in service.
d)Injunction restraining the defendants, their agents, privies from doing anything in relation to this matter being subject of an appeal in Appeal No CA/E/341/2010 between Engr. Emmanuel Keneth Uzor v. Ministry of Works and Federal Civil Service Commission.

It is against the above that the 1^st & 3^rd defendants filed the undated Motion on Notice for preliminary objection [NPO] challenging the jurisdiction of the Court at this Court on 28^th November 2017. The NPO was accompanied with an affidavit and a written address. The claimant/respondent reacted by filing a counter affidavit on 18^th December 2017. The counter affidavit was also accompanied with a written address dated 4^th December 2017 but filed along with the counter affidavit on 18^th December 2017. The 1^st and 3^rd defendants/applicants filed a further and better affidavit on 6^th February 2018. There is another Notice of Preliminary Objection dated 1^st February 2018 and filed the same day. It was filed on behalf of the 1^st defendant/applicant. It was accompanied with a written address. The claimant/respondent filed written address in opposition to this 2^nd NPO on 12^th February 2018. The 1^st and 3^rd defendants/applicants also filed a further and better affidavit on 6^th February 2018. The claimant/respondent’s counter affidavit filed 18^th December 2017 and the written address that accompanied it, were both deemed properly filed and served on 6^th February 2018.

The two NPOs came up for hearing on 24^th May 2018. The counsel to the parties adopted their respective written addresses on the two NPOs. In adumbration, the learned I.C. ACHARA stated that this suit predated the one struck out. Other counsel did not adumbrate. Ruling on the NPOs was thereafter adjourned to 21^st June 2018, but it was not ready on this date and was adjourned off records on occasions eventually to the 19^th July 2018.

Let me now summarise the written addresses of counsel on these NPOs.

WRITTEN ADDRESSES ON THE TWO NPOs

Written Address in Support of the 1^stNPO

A.J. REUBEN-NNWOKA franked this written address in support of the 1^st NPO. The gist of the written address this present suit constitutes an abuse of the process of this Court in that similar suit with similar reliefs and parties had been instated and determined in this Court in Suit No. NICN/OW/08/2015. Counsel cited CBN v. Ahmed (2001) FWLR (Pt. 56) 673, para. 6 to the effect that re-litigating already decided issue, even if not strictly res judicata, is an abuse of process. Counsel therefore urged the Court to dismiss this case. I now move to the written address of the counsel to the claimant/respondent.

Written Address in Opposition to the 1^stNPO

I.C. ACHARA franked this written address. In a nutshell the argument of counsel is that the present suit is not an abuse of process in that the issue being litigated, the threat to prematurely retire the claimant/respondent vide notification letter dated 23/1/2012, had not been raised in the previous suits. Counsel submitted further that the suits mentioned as being the same with this and which were said to have been filed at the Federal High, Owerri, Abuja and Ado Divisions is one and the same case with this, and that the suit only underwent transfers in these divisions of the Federal High Court before it was subsequently transferred to this Court. Counsel argued further that the mere fact that this suit was discontinued and struck out at the Federal High Court and latter relisted and transferred to this Court could not constitute abuse. Counsel cited Habib Bank Nig. PLC v. Lodigian (Nig.) Ltd (2010) 14 NWLR (Pt. 1213) 330 at 346, paras. D-E. Counsel argued that this suit has different subject matter to Suit No. NICN/OW/08/2015 and predated it and that for abuse to apply, it must attach to the latter in time, which is the one filed in NICN/OW/08/2015. On this counsel cited Ogbonmwan v. Aghimien (2016) LPELR-40806 (CA).

Counsel submitted also that the issue of abuse had been ruled upon by the Federal High Court on 25/5/2017 and that this application to re-litigate the same issue on which this Court had become functus officio is actually an abuse of process. Counsel urged the Court to dismiss the application. I now move to the reply on points of law.

I cannot find anything that amounted to reply on points of law in the address. All I found was re-argument and embellishment of the original written address. Hence, I have refused to put anything down under reply on points of law. I therefore move to the 2^nd NPO. CHINDO B. UMAR and N.R. ONYEBUENYI franked this written address. The learned counsel made exactly the same arguments and on exactly the same facts as the arguments canvassed by the erstwhile counsel on the 1^st NPO. There is therefore no need for me to repeat them. It is the same with regard to the written address filed in opposition by counsel to the claimant/respondent. It is an identical repetition of the one filed against the 1^st NPO. I have therefore not bothered myself to repeat them. The next thing is to give my decision.

DECISION OF THE COURT

In deciding these two NPOs I shall adopt the lone issue formulated by the learned counsel to the claimant/respondent in the written address against the 1^st NPO, to wit: “whether this suit is an abuse of court process as alleged?” I begin by saying abuse of court’s process comes in many forms, colours and shapes. Abuse of process may be by way of res judicatam or by mere multiplicity of suits or issue estoppel or forum shopping, etc. The common denominator is that the process of the court is not used bona fide and employed to the annoyance of the other side. The first of the abuse raised is that of res judicata. And to resolve this, one just needs to compare and contrast the processes relating to the two suits and come out with his findings. Exhibit A6 of the affidavit in support of the 1^st NPO is the judgment of this Court in issue, that is: Suit No. NICN/OW/08/2015. The parties were: Engr. Dr. Emmanuel Keneth Uzor v. (1) Hon. Minister of Works, (2) Dr. A.K. Muhammad, (3) Head of Service, and (4) Federal Civil Service Commission. The present suit has: Engr. Dr. Emmanuel Keneth Uzor v. (1) Hon. Minister of Works, (2) Federal Civil Service Commission, (3) Director, Human Resources Management, Federal Ministry of Works. The reliefs claimed in the Exhibit A6 are as listed hereunder:

A Declaration that the purported date of birth of 14^th January 1952 and or 12^th February 1952 used in the compilation of the claimant’s retirement instead of the correct date of birth of 14^th January 1955, as contained in affidavit of Age Declaration of May 2008 which contains substantially the same information of the claimant’s point of entry into Federal Civil Service, is unlawful, irregular, in bad faith and in breach of the terms and conditions of employment under the Federal Civil Service rules.
A Declaration that the correct date of birth of the claimant is 14^th January 1955 as conveyed by Affidavit of Age Declaration of May 2008, submitted to the Head of Service of the Federation in 2008 is the claimant’s correct dated of birth.
A Declaration that the continued retention of the claimant on Grade 15 since 1^st January 2001. Without any meaningful decision by the Federal Civil Service Commission to place him on Grade Level 17 as directed by the Court Order of 3^rd October 2002 is unlawful, irregular in bad faith and in breach of order of seniority in the Federal Civil Service Commission.
A Declaration that the refusal of the 1^st and 2^nd defendants to reimburse/refund the funds/monies spent by the claimant in the cause of his duty in Ekiti State as the Federal Controller of Works Ekiti State between 1^st January 2012 and 31^st March 2012 is unlawful, irregular, in bad faith and against the Federal Civil Service Rules.
An order of specific performance directing the defendants to give effect to the correct date of birth of the claimant as 14^th January 1955, as conveyed by an affidavit of age declaration of May 2008, submitted to the Head of Service of the Federation in 2008 as the claimant’s correct date of birth.
An order of specific performance directing the Federal Civil Service Commission to place/promote the claimant to Grade level 17 with effect from 1^st January 2010 to avoid loss of seniority and or benefits in compliance with Court Order of 3^rd October, 2002.
An order directing the 1^st and 2^nd defendants to pay the arrears of money spent by the claimant in rendering services while in Ekiti State when he was the Federal Controller of Works between 1^st January 2012 to March 2012 in the sum of (N2,975,0000.00) [sic] Two million nine hundred and seventy five thousand naira only.
An order directing the 1^st and 2^nd defendants to pay claimant all his transfer allowances due to him as follows:
Transfer from Benue State to Abuja in January 2005 as N508,000.00 (Five hundred and eight thousand naira) only.
Transfer from Abuja to Ekiti State in May 2009 in the sum of N508,000.00 (Five hundred and eight thousand naira) only.
The sum of N500,000,000.00 (Five hundred million naira only as general damages for breach of contract of employment, unlawful retirement and denial of seniority in service.
An order directing the defendants to pay the cost of this suit to the plaintiff.

It would be observed by a comparison of the reliefs in the two cases would show that reliefs a, b, and e of NICN/OW/O8/2015 correspond with reliefs a, b, and c of the present suit. These are the principal reliefs in the two suits. All the other reliefs are ancillary. So, the suits are the same. The real parties in the two suits are the claimant and the Federal Civil Service Commission, the claimant’s employer. It would also be observed that the parties are virtually the same. It is also clear that the decision of this Court in NICN/OW/08/2015 was a final decision of this Court, a competent Court on all issues connected with employment and labour/industrial relations. The Supreme Court in Makun & Ors. v. Federal University of Technology, Minna, 2011 Legalpedia SC X944 page 1 stated thus:

“In determining whether the issues, the subject matter of the two actions are the same, the court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The court may also examine other relevant facts to discover what was in issue in the previous case.

The plea of res judicata applies except in special cases, not only to points which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward.”

By virtue of the above authority, it is evident that I am at liberty to comb through all relevant processes in the case file to discover the real cause of action and the issues in controversy. Therefore, as occasion demands, I shall make reference to any document in the case file to settle the issue at hand. I observed that the NICN/OW/08/2015 was actually struck out for being statute barred. The implication being that it was not heard on the merit. In Udo & Ors. v. Obot & Ors (1989) LPELR-3297 (SC) 15, paras. C-E, the Supreme Court held:

“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a final judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another inter partes.”

It is clear from the above that a suit struck out was not heard on the merit. It cannot therefore constitute res judicata. Had it been that the suit was not struck out for being statute barred, all the trappings of res judicata would have coalesced. The mere addition of fancy reliefs and parties would not matter. Those three corresponding reliefs were the principal reliefs. All the others were ancillary. I therefore hold that res judicata is not established in this case as a ground of abuse. Now, what was the effect of the withdrawal of this present suit, leading to its being struck at the Federal High Court before it was relisted and transferred to this Court? This would depend on the state of the pleadings. As at 28^th February 2013 the plaintiff/claimant in this suit at the Federal High Court had filed his Reply to the 1^st and 3^rd Defendants’ Statement of Defence – see p. 185 of the Main File A at the Federal High Court. I found too, that as at 7^th May 2012, the 1^st and 3^rd Defendants had filed their Statement of Defence – see p. 101-104 of the Main File A at the Federal High Court. Now, it is clear that the 2^nd defendant had not filed its Statement of Defence. Issues were therefore not joined between the 2^nd defendant and the plaintiff at the Federal High Court. On the application of the plaintiff dully filed, this suit was formally withdrawn at the Federal High Court and struck out on the 14/03/14. The law is that a suit withdrawn after pleadings have been exchanged is deemed dismissed – see Alhaji Isiyaku Yakubu Ent Ltd v. Tarfa & Anor (2014) LPELR-24223 (CA) 29, paras. E-G. But since issues were not joined between the plaintiff and the 2^nd defendant before the withdrawal and striking out, it would appear to me that the order relisting the suit and transferring it to this Court was properly made and made when the Court had not become functus officio. If issue of being functus officio is to apply at all, it must be with regard to the parties with which issues were joined, and since the three parties were jointly sued, it follows that their the failure of issue being joined with the 2^nd defendant enured in favour of the plaintiff in relisting the case.

However that has not settled the issue of abuse raised against the claimant herein. Within this confine is also abuse by way of forum shopping. This I think this present suit cannot escape. Why? This suit had a chequered history at the Federal High Court. At one point it was struck out for want of diligent prosecution, and at another point, the claimant withdrew it to pursue the identical suit filed at the National Industrial Court. When the suit at the National Industrial Court was struck out for being statute barred on 4^th October 2016, this one, which had been left in limbo at the Federal High Court was resuscitated on 25^th May 2017. As could be seen a clear case of forum shopping and the use of Court process to the irritation of the defendants is established. In Alhaji Isiyaku Yakubu Ent Ltd v. Tarfa & Anor [supra] 31-32, paras. G-A, it was also held:

“The term abuse of process connotes simply the misuse of court’s process and it includes acts which otherwise interfere with the course of justice. These acts include where, without reasonable ground, a party institutes frivolous, vexatious and oppressive actions and also where a party institutes a multiplicity of actions or engages on a frolic by acts of forum-shopping, i.e. seeking for a favourable court to entertain his matter.”

The present suit is guilty of all the identified sins listed above without exception. Forum shopping has the pernicious effect of dissipating the time of the judicature in making different courts and judges to attend to the same matter at the same time thereby wasting judicial time. It also portends the danger for the two different courts to reach two different decisions on the same issue to the discomfiture of the entire judiciary. It must be discouraged. A party must not be allowed to outsmart the Court. This suit, as it is, for the reasons offered above, constitutes an abuse of the process of the Court. It is therefore dismissed – African Reinsurance Corporation v. JDP Construction Nigeria Limited (2003) LPELR-215 (CA) 29, Paras. C-D.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

OWERRI DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA