IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA)
DATE: 16TH JANUARY 2017
SUIT NO. NICN/ABJ/19/2016
BETWEEN:
JONATHAN MICHEAL & 195 ORS
…….CLAIMANT/RESPONDENT
AND
- ZHI JIANG NIGERIA LIMITED
- CINAFINDEV NIGERIA LIMITED
—— 2ND DEFENDANT/ APPLICANT
REPRESENTATIONS:
- A. LAWAL ESQ., FOR THE CLAIMANT
U.I. IGWENEME,ESQ., for the 2ND DEFENDANT
(with STAN DIOKA, ESQ.)
RULING
This suit was commenced via a complaint dated and filed 14th January 2016. It was accompanied with Claimants’ Joint Statement of Facts. The reliefs claimed in the joint Statement of Facts are as listed hereunder:
- A declaration that the 1st defendant by its actions and inactions has rendered casual the employment of the complainants herein contrary to the intentions of the Claimants at the point of joining the services of the Defendant.
- A declaration that the 1st defendant is in violation of the rights and entitlements of the claimants as contained in the National Union of Civil Engineering Construction, Furniture and Wood Workers circular of 27th January, 2014; Terms and Conditions of Service For All Junior Employees in the Building and Civil Engineering Industry in Nigeria 2009, the Labour Act, the Workmen Compensation Act, the terms and conditions of engagements of the claimants herein and other extant labour laws in Nigeria.
- A declaration that each and every one of the claimants is entitled to and be issued with a Contract of Service by the defendant in pari material with the Terms and Conditions of service for junior employees in the building and civil engineering industry in Nigeria.
- An order of this Honourable Court awarding against the defendants the sum of N500, 000, 000.00 (Five hundred million naira) only being damages for rendering casual the contracts of the claimants.
- A declaration that agents of the 1st defendant infringed on the Right to Human Dignity and is tortuously liable for the physical and psychological assaults inflicted by its agents on the claimants.
- Damages in the sum of N392, 000, 000.00 (Three hundred and ninety two million naira) only being remedy for the physical assault and psychological abuses which ignites emotional trauma and ignominy in the claimants from the agents of the 1st defendant.
- Damages in the sum of N5, 000, 000.00 (Five million naira) only for unlawfully denying holidays to the claimants by the 1st Defendant without compensation.
- Any order or other orders as the Honourable Court may deem fit to make in the circumstance.
[All sic]
Against the above, the 2nd defendant/applicant filed a Notice of Preliminary Objection [NPO] on 7th April 2016. The lone ground of the NPO is that it discloses no cause of action against the 2nd defendant. The NPO was accompanied with a written address for which the applicant formulated a lone issue thus:
Whether the Claimants action discloses a cause of action against the 2nd Defendant/Objector.
Counsel to the applicant cited some authorities defining cause of action and argued that it is only the pleadings of the plaintiff, which a court examines to determine whether there is a cause of action. Counsel went on to argue that for a cause of action to arise, the pleadings of the plaintiff must show the legal rights of the plaintiff and the corresponding obligations of the defendant; and must thereafter plead facts showing infraction of these rights by the defendant. On this, counsel cited Rinco Construction Co. Ltd v. Veepee Industries Limited & Anor. (2005) 9 MJSC 197 204 and Thomas v. Olufosoye (1986) 1 NWLR (Pt. 400) 669 at 682. Counsel submitted that the pleadings of the claimants herein disclosed that they were ex-employees of the 1st defendant, and that the allegation of breach of terms of contract, which forms the basis of this action, the 2nd defendant is not privy to and neither is it privy to the stakeholders agreement [Exhibit A, and the decision of the Reconciliation Committee [Exhibit C] in issue. Counsel pointed out that the 2nd defendant was only mentioned in paragraph 3 of the Statement of Facts in relation to undertaking the construction of a cement factory at Allo Community. Counsel submitted that since there is no privity of contract between the 2nd defendant and the claimants with respect to the subject matters of this case, there is therefore no triable cause of action in this suit; and that, as such, the 2nd defendant is not a necessary party. Counsel cited Bebeji Oil Allied Product Limited v. Pancosta Ltd (2007) 31 WRN 168 at 175, r. 2 and Rinco Construction Co. Ltd [supra].
On this basis, the Court was urged to uphold the NPO.
I now turn to the written address of the respondent in reaction to the NPO. In arguing this written address, the respondent formulated a lone issue, to wit:
Whether the 2nd Defendant/Applicant is a necessary party to the instant suit.
In arguing this issue counsel submitted that the case of Rinco Construction Company [supra] relied on by the applicant is distinguishable in that it addressed the issue of where there is no nexus between the parties, which is not the case herein, in that the Statement of Fact herein has shown the claimants were directly appointed by the 1st defendant as an agent for the 2nd defendant. Counsel referred the Court to paragraphs 2 and 3 of the Statement of Fact. Counsel submitted that arising from the foregoing, the 2nd defendant becomes a necessary party since it would be affected by the outcome of the case. On this submission, counsel cited Carlen v. University of Jos (1994) 1 NWLR (Pt. 323) 631; Niger Progress Limited v. North East Line Cooperation (1989) 3 NWLR (Pt. 107) 68; Osigwe v. P.S. P.L.S Management Consortium Limited (2009) 3 NWLR (Pt. 1128) S.C. 378.
Counsel submitted further, that the nexus making the 2nd defendant a necessary party is further shown by the fact that representatives of the 2nd defendant were active participants in the series of events giving rise to the cause of action as evidenced in annexures A and C. Counsel later cited Olawoye v. Jimoh (2013) 13 NWLR (Pt. 1371) 362 at 363, para. D as the most appropriate case to resolve the issue of whether the 2nd defendant is a necessary party. Counsel argued that necessary party is a party who, in its absence, the pertinent issues cannot be determined.
On the basis of the above submissions, counsel urged the Court to dismiss the NPO.
I now turn to the process titled “2nd Defendant/Objector’s Reply to the Claimant’s Written Address dated 10th May 2016”. Let me observe first, that, the applicant has no right of general reply to the address of the respondent, which itself is a reply to the address the applicant filed in respect of the NPO. What rather the applicant has a right to, after the written address of the respondent, is what is properly called “reply on points of law”. This address actually re-argued the whole of the NPO repeating arguments earlier canvassed and improving on them. Reply on points of law is not an avenue to re-argue a party’s case, but merely an avenue to reply to any new point raised, which was not covered in the applicant’s address. Where a reply on points of law seeks to reargue an application, the Court has a duty to discountenance it – Ecobank Nig. Ltd v. Anchorage Leisures Ltd & Ors (2016) LPELR – 40220 (CA) 42, paras. B – E. I therefore discountenance all the aspects of the reply address that attempted to reargue the NPO and shall only limit myself to proper reply on points of law.
The only aspects of the reply that meet the law are the arguments that, the Olawoye v. Jimoh [supra] cited by the respondent, rather supports the case of the applicant contrary to the assertion of the respondent and the submission that the reliefs claimed in this case are essentially against the 1st defendant and that, as such, the case could be lawfully decided in the absence of the 2nd defendant: thus, ended the reply.
My duty now is to resolve the dispute raised by the NPO, and decide whether or not the 2nd defendant/applicant is a necessary party in the instant case. In doing this, I beg to adopt the issue formulated by the respondent. This, I believe, knocks the nail on the head while the one formulated by the applicant seemed oblique. I have earlier in this ruling quoted the issue: there is therefore no need to repeat it. The question raised in the issue is whether the 2nd defendant is a necessary party in the instant suit? My answer to this poser is: Yes. Why?
The counsel to the parties seemed not to understand the tenor of the Statement of Facts. A reference to paragraph 10 of the Statement of Facts is sufficient to show that this action is not only connected with issues bordering on breach of contract, but on issues verging on torts. Paragraph 10 of the Statement of Facts states thus:
The claimants further aver that in addition to all the above members of the higher hierarchy of the defendant who are Chinese are in the habit of physically assaulting the claimants while engaged at work. This is usually in the form of slaps, kicks and spitting on the claimants amidst other derogatory remarks and conducts.
Construction of the above paragraph easily yields to the fact that the issue raised therein is patently within the confines of the law of torts. When this is construed along with paragraph 2 of the Statement of Facts, which states that, “The 1st defendant is a company carrying out its operations presently at Allo community, Offu Local Government Area of Kogi State since 2011 at the instance of the 2nd defendant”, it would be plain to the senses that issue bordering on agency relationship or vicarious liability between the 1st and 2nd defendants is raised. Now, the law on joinder of parties in action, which is strictly on breach of contract, is different from that on an action involving torts. This is why the arguments of counsel on both sides missed the point. In Mohammed v. Babalola (2011) LPELR – 8973 (CA) 40, paras. A – F, the Court of Appeal stated the law in the following passage: “Being joint tort feasors therefore, a plaintiff has the liberty to choose his victim. He may decide to either sue the principal and agent separately or both of them jointly”. [Underline mine for emphasis] The view of the Court of Appeal herein was based on the decision of the Supreme Court in Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) LPELR – 1432 (SC) 24 – 25, paras. G – B, which had earlier sated the principle of law.
It is plainly clear thereof that while in an action based squarely on breach of contract the law might be that once a principal is revealed the agent cannot be sued but only the principal could be sued. However, as shown above, this principle of law does not hold when the action has some elements of torts involved. In that case, the law is that both the principal and the agent could be jointly sued at the discretion of the suer. This is a right conferred by law. There is no argument about it. Since I have shown that part of the grouse in this action bothers on torts, it follows that the joinder of the 2nd defendant who is alleged to be the principal of the 2nd defendant is proper, and I so hold.
To this extent, the NPO is lacking in merit and is accordingly dismissed. The matter shall proceed to trial on the merit with the 2nd defendant as a necessary party. Let me add at this juncture that the Court is not concerned with the weakness in a party’s case when determining whether or not there is cause of action. Cause of action is sufficiently established as soon as there is a triable issue and consequential relief thereof – see Afolayan v. Ogunrinde & Ors. [1990] LPELR – 198 (SC) 34, paras. B – D.
I award no cost.
…………………………………….
Hon. Justice B.A. Adejumo, OFR
President,
National Industrial Court of Nigeria
