IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HONOURABLE JUSTICE K.D.DAMULAK
ON THE 23RD DAY OF MAY, 2019
SUIT NO: NICN/ABJ/13/2019
BETWEEN
JOSAC INVESTMENT RESOURCES LIMITED ……………. …..………CLAIMANT
V
OMOSUN ISIBHAKHOMEN CHRISTIANA …………………….…. DEFENDANT
REPRESENTATION
Olamide Oyetayo for the claimant
No representation for the defendant
JUDGMENT
INTRODUCTION
By an originating summons dated and filed on 23/1/2019 and accompanied by all the processes required by the Rules of this Court, the claimant prays for the determination of three questions and for six reliefs . The questions and reliefs are as follows;
QUESTIONS FOR DETERMINATION.
Whether having regard to the express, clear, unambiguous and mandatory provisions of Sections 8 and 33 of the labour act, Volume 8, CL1, laws of the federation of Nigeria, the recruitment of the defendant by the claimant is not null, void, unenforceable and illegal.
Whether having regard to the mail sent by the claimant to the defendant on the 5th day of May 2018, the employer- employee relationship between the claimant and the defendant was not terminated in conformity with the conditional offer letter dated 30th day of April 2018, ( exhibit A).
Whether having regard to the fact that the defendant did not and has not resumed and or has not performed any work at the claimant’s company on the 7th day of May 2018 as contained in the conditional offer letter dated 30th day of April 2018, or any other date thus not possible to have performed any of the responsibility she was recruited for, entitled to remuneration and or compensation.
RELIEFS SOUGHT
A DECLARATION that the recruitment of the defendant by the claimant as premised on the conditional offer letter dated the 30th day of April 2018 is null, void, unenforceable, illegal and of no effect whatsoever having failed to comply with provisions of Sections 8 and 33 of the labour act, volume 8, CL 1, laws of the federation of Nigeria.
A DECLARATION that there is no subsisting employer- employee relationship whatsoever between the claimant and the defendant having regard to the mail dated the 6TH day of May 2018, and the conditional offer letter dated 30th April 2018 ( referred to as Exhibit A)
A DECLARATION that the defendant is not entitled to any remuneration and or compensation from the Claimant having regard to the mail dated the 5th day of May 2018 CLAUSE 8 and 11 of the conditional offer letter dated 30th April, 2018.
AN ORDER of this Honourable Court restraining the Defendant either by itself,(sic) servants, agents, privies or assigns from doing anything that would be adverse to the existence of the claimant’s business/rights.
AN ORDER of Injunction restraining the Defendant from presenting or parading himself or acting in any way or manner as an employee of the claimant.
AN ORDER of perpetual injunction restraining the defendant either by herself, servants, agents, privies, or assigns from doing anything that would amount to threatening the claimant or their business.
RELEVANT FACTS
The claimant gave the defendant a letter of employment on 30/4/2018 expecting her to submit her acceptance of the offer in five days on 5/5/2018 and to resume work two days thereafter on 7/5/2018.The defendant did not submit any acceptance and on the sixth day, 6/5/2018, the claimant asked the defendant, through email, not to resume work. The defendant did not resume work.
The claimant then filed this suit on 23/1/2019 and it was served on 21/2/2019. The defendant did not enter an appearance but filed a motion on notice on 22/3/2019 praying this Court to stay proceedings, remit this case file to the president of this Court for onward transfer and reassignment to another judge in Lagos Division. On 25/3/2019, one E.O. Ebhonuaye appeared for the defendant and this case was adjoined to 8/5/2019 for hearing. On the 2/4/2019, the defendant filed a memorandum of appearance without a motion for extension of time. On 8/5/2019, neither defendant nor counsel was in court and no any explanation. Accordingly, the Court struck out both the motion and the memorandum of appearance filed and heard the claimant.
CASE OF THE CLAIMANT
In its 17 paragraph affidavit deposed to by one Josephine Amaechi Berkovish, the Managing director/Chief Executive Officer of the Claimant, she deposed that pursuant to the Defendant’s application for the post of a legal Secretary in the Claimant’s company and subsequent interview in that regard, the claimant vide a letter dated the 30th day of April 2018 therein made a conditional offer for employment to the defendant. (Exhibit A). In the said letter, it was stated therein that the defendant resumes/starts in the Claimant’s company on the 7th day of May 2018. That it is stated therein in the said conditional offer letter that the defendant upon the receipt of the letter should accept, execute and promptly return the endorsed copy to the claimant i.e. personally and return to the claimant within five (5) working days failure to do so shall construe strictly to mean that the defendant have repudiated the said offer thus the offer shall be deemed to have lapse. That the defendant however refused and or neglected to promptly return the endorsed accepted copy of the conditional offer letter dated the 30th day of April 2018 within five (5) working days or any other day even as at the time of filing this suit. Claimant was left to presume that the said conditional offer proffered to the defendant dated the 30th day of April 2018 has lapsed thus terminated. That the Claimant on the 6th day of May 2018, sent a mail, which was duly delivered to the defendant, instructing her to halt her resumption which was scheduled for the 7th day of May 2018. (Exhibit B). That the Claimant reserves the right to fire the defendant as she was hired by the Claimant. That assuming without conceding that the defendant’s offer was not terminated before her resumption on the 7th day of May 2018, the defendant still did not resume on the 7th Day of May 2018 or any other date till the time of filing this suit. That the defendant did not perform or render any service to the Claimant either on the 7th day of May 2018 or any other date even as at the time of filing this suit as such is not entitled to any form of remuneration or compensation. That no medical test/examination was conducted on the defendant as part of the recruitment exercise. That having regard to the mail sent to the defendant by the Claimant on the 6th day of May 2018, the employer employee relationship created by virtue of the conditional offer letter dated the 30th day of April 2018 was terminated. That the employer-employee relationship created by virtue of the conditional offer dated the 30th day of April 2018, is null, void and unenforceable whatsoever, thus terminated by operation of law. That this action is to seek the Honourable Court’s protection and enforcement of the rights of the claimant. It is in the interest of justice to restrain the defendant from seeking any form of remuneration or compensation from the claimant.
In his written address, learned A.H.Muktar Esq of counsel for the claimant submitted that the defendant did not undergo any medical examination for the purpose of the employment contrary to sections 8 and 33 of the Labour Act thus rendering the employment void and terminates the employer employee relationship. All the submission of counsel were an adumbration on the deposition in the affidavit in support of the originating summons.
COURT’S DECISION
I have carefully read the affidavit in support of the originating process as well as the written address and I have taken the pains to reproduce the affidavit in full. One question that keeps recurring is, what is the cause of action? Before determining the merit of the case, it is imperative to first determine the cause of action.
In DR. OKEZIE VICTOR IKPEAZU v. OBASI UBA EKEAGBARA & ORS
(2016) LPELR-40847(CA) the court of appeal held;
What is cause of action? In Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) P. 50 @ 131, cause of action has been defined as the entire set of circumstances giving rise to enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements:
(a) The wrong act of the defendant which gives the plaintiff his cause of complaint; and
(b) The consequent damages.
Ibrahim v. Osim (1988) 3 NWLR (Pt. 32) 257; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598.
A cause of action is a set of facts, distinct from the evidence averred in the statement of claim, which the plaintiff must prove to support his right to the judgment of the Court. In other words, a cause of action consists of every fact, which the plaintiff must prove, if traversed, in order to support his claim for judgment C.B.N. v. Manesport S.A. (1987) 1 NWLR (Pt. 18) 669; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598; Bello v. A-G, Oyo State (1986) 5 NWLR (Pt. 18) 669.
The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajito (1988) 3 NWLR (Pt. 30) P. 1; Egbue v. Araka (1988) 3 NWLR (Pt. 84) P. 598; Bello v. A. G. Oyo State (1986) 5 NWLR (Pt. 18) P. 669 and Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 131.
From the facts deposed in this case, there is neither a dispute disclosed between the parties nor a damage suffered by the claimant who asked the defendant not to resume work. There are no facts disclosed giving the claimant a right of action against the defendant.
The deposition that came closest to disclosing a cause of action is as follows;
That this action is to seek the Honourable Court’s protection and enforcement of the rights of the claimant. It is in the interest of justice to restrain the defendant from seeking any form of remuneration or compensation from the claimant.
However, the right of the claimant that is threatened by the defendant is not disclosed. Similarly, there is no evidence that the defendant is seeking any form of remuneration or compensation from the claimant.
A fear or suspicion, real or imagined, that the defendant may in future, wrongly or rightly, lay claims against the claimant, does not constitute a cause of action to enable the claimant sue the defendant.
In the circumstance, I find that no cause of action, let alone, a reasonable one disclosed in this suit. This suit is accordingly struck out.
This is the judgment of the court and it is entered accordingly
……………………………..
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA
