IN THE NATIONAL INDUSTRIL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 12th December, 2017
SUIT NO.: NICN/YEN/48/2016
BETWEEN:
JOSEPH JOHNSON OSAYANDE===
CLAIMANT/APPLICANT
AND
- THE SHELL DEVELOPMENT
COMPANY OF NIGERIA LIMITED
- SHELL NIGERIA EXPLORATION
AND PRODUCTION COMPANY
LIMITED===
DEFENDANTS/RESPONDENTS
REPRESENTATION:
George Ogara Esq. appeared with Q.O. Epiah Esq. for the Claimant/Respondent.
- A. Johnmark Esq. for the Defendants/Respondents.
RULING
The Claimant brought this suit by way of a Complaint dated 8th March 2016 and filed on the same date. In the accompanying Statement of Claim he claims the following reliefs against defendants jointly and severally:
- A DECLARATION that the action of the 1st defendant in terminating the Claimant’s Contract of employment with the 1st defendant by a letter written by the 2nd defendant dated 18th June, 2015 is unlawful and a breach of the Terms and Conditions of Employment between the Claimant and the defendant.
- AN ORDER of Court setting aside the letter dated 18th June, 2015 issued to the claimant by the 2nd defendant for being illegal.
- The sum of N492,859,359.34 (Four Hundred and Ninety-Two Million, Eight Hundred and Fifty-Nine Thousand, Three Hundred and Fifty Four Naira, Thirty Four Kobo) being the Claimant expected total salary/emoluments from July 2015 to June, 2022.
- The sum of N115,698,311.99 (One Hundred and Fifteen Million, Six Hundred and Ninety-Eight Thousand, Three Hundred and Eleven Naira, Ninety-Nine Kobo) being the gratuity due to the Claimant from the defendant Company upon retirement in the year 2022.
- The sum N867,737,339,311.91 (Eight Hundred and Sixty Seven Million, Seven Hundred and Thirty Seven Thousand, Three Hundred and Thirty-Nine Naira, Ninety-One Kobo) being total annual pension due to the Claimant from the defendant upon retirement from 2022 to 2037.
The Complaint was accompanied with Statement of Claim, list of witnesses, Statement on oath of witnesses, list and copies of documents to be relied upon at trial.
Upon being served with the processes of the Claimant, the Defendants on 29/03/2016 entered a Conditional Appearance, a joint statement of defence with the accompanying processes. The Claimant further filed a Reply to the Statement of Defence with accompanying Statement on oath and copies of documents to be relied upon at trial.
The defendants amended their Statement of defence subsequently by order of court made on 12th July, 2016.
Then on 24/4/2017 the Claimant filed both motion ex parte and motion on notice. The motion ex parte was determined on 16/5/2017 while the motion on notice was heard on 13th November, 2017. In the said motion on notice dated 21st March 2017 but filed on 24th March, 2017, the Claimant prays the court for the following reliefs:
- AN ORDER of the Honourable Court for the defendants to deposit the pecuniary claims in this Complaint in an interest yielding account in a recognized financial institution in Nigeria in the name of the Chief Registrar of the Honourable Court pending the hearing and determination of this Complaint.
- AND for such further Orders or other Orders as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which the application is based are that:
- The Honourable Court has powers to Order the deposit of any sum in dispute into the account of the Chief Registrar of the Honourable Court.
- The claims of the claimant is for the employment benefit and salaries withheld by the defendants.
- The defendants have continued to delay the conclusion of this suit commenced at the High Court of Rivers State for two (2) years.
- The defendants have been making use of the employment benefits of the claimant to make profit for almost two (2) years.
- A party is not allowed to continue to make use of the subject matter in dispute/res during the pendency of a case.
The motion is supported by an affidavit of 47 paragraphs deposed to by the Claimant himself. There is also a written address in support of the application. In the said written address the learned Claimant’s counsel formulated a sole issue for the court’s determination as follows:
Whether the Claimant/Applicant has sufficiently shown in law and in the affidavit in support of the Motion on notice that he is entitled to the order sought in relief 2,3,4 and 5 in the Motion?
Arguing the said issue, learned counsel submitted that the Court has power upon the application of a party to an action before it, to Order for the detention, custody or presentation (sic) of any property which is the subject matter of an action or as to which any question may arise. Similarly, where the right of any party to a specific fund is in dispute in an action, the Court may on application of a party, order the fund to be paid into court or secure the funds in any other way. That Order 2 Rule 2(3) of the National Industrial Court Rules, 2017, provides thus:-
(3) Where the right of any party to a specific fund is in dispute in an action, the Court may on application of the party, order the fund to be paid into court or be otherwise secured.
Similarly, Order 36 Rule 6(1) and (2)(3) of the National Industrial Court Rules, 2017 provides thus:-
6-(1) Where an amount is required to be paid into/or deposited in Court, the Court may if it thinks it expedient, order that the money be paid into an interest yielding savings account with a reputable Commercial Bank with the name, The Chief Registrar, National Industrial Court of Nigeria.
(2) Such payment shall be done by the Chief Registrar and any interest payable by the Bank shall accrue pro tanto to the benefit of the party who, at the end of the action, is entitled to the money originally paid into Court.
(3) In this Rule. “Funds in Court includes money paid into a bank account.”
Learned counsel continued that where a defendant is about to leave jurisdiction or his property or any part thereof is about to leave Jurisdiction, the Claimant may apply to the Court that security be given for the appearance of the absconding party to answer and satisfy any Judgment that may be passed against the defendant.
That the first duty of an applicant in an application of this nature is to show that there is a good cause of action (suit) against the defendants/respondents. He referred to the case of Rick Nadim Kassab vs Paul D. Ulasi (1987) 4 NWLR (Pt. 67) p. 877 at p. 884 para F aand p. 891 at para B, where Ademola JCA, stated that:
The Judge at that stage in my opinion must be concerned whether a Writ has been issued from the Court and whether the necessary particulars of such claim accompany the Writ….I do not think he need show more than the Writ and particulars of the claim and the necessary affidavit to grant the prayers. I am satisfied on the materials before the Judge that the Respondent has shown a good cause of action against the appellant.
He also referred to the text, Civil Procedure in Nigeria, 2nd Edition, page 576 by Fidelis Nwadialor, where the learned author stated as follows:
For the proof of a good cause of action against the defendant, that a Writ of Summons has been issued with the necessary particulars of the claim is sufficient evidence.
That in the instant case, the Claimant/applicant has stated in paragraphs of the affidavit in support of the Motion on Notice that the Originating processes in this suit has been filed and the suit is pending against the defendants only.
Another duty on an applicant is to show that the Complaint and other necessary particulars of the claim have been served on the defendant. He referred to Rick Nadim Kassam vs Paul D. Ulasi, supra, at p. 887 paras C-D, per Ademola JCA and at p. 893, para B-C per Nnameka-Agu JCA. That in the instant case, the Claimant/applicant as in paragraph of the affidavit in support has deposed to the fact that the defendants/respondents have been served with all the originating processes in this suit.
That the Claimant/applicant has a further duty to show that the defendant is about to leave Nigeria. He referred to Rick Nadim Kassam vs Paul D Ulasi, supra, at p. 891 paras C-D, where Ademola JCA, stated thus:
There must be in my view strong evidence that an absconding defendant is leaving the country permanently and has no intention of return again.
In the instant case, the Claimant/applicant in paragraphs of the affidavit in support of Motion on Notice has deposed that the 1st Defendant is about to transfer the 2nd and 3rd defendants interest to a 3rd party.
That the claimant has also shown by affidavit evidence that the absence of the defendants from Nigeria will frustrate and materially prejudice the execution of any decree, Judgment or Order to be made against them. The Claimant/applicant has deposed in paragraphs of the affidavit in support of Motion on Notice that the case of the Claimant cannot be proved without examining the defendant who is personally sued in this suit. In Rick Nadim Kassab vs Paul D. Ulasi, supra, at p. 886, paras C-D, Ademola, JCA, stated thus:
Human beings being what they are we sometimes like to avoid fulfilling our obligations and look for the easiest way out which sometimes take the form of disappearance. The power in the Court to prevent such disappearance until security is given for the performance of the obligations is the justification for having such a law on a statute book.
In the instant case, the Claimant/applicant has deposed in paragraphs of the affidavit in support of Motion on Notice that the absence of the defendant/respondent will adversely affect the satisfaction of any Judgment that may be passed against the defendants/respondents.
Finally, that the Claimant/applicant must undertake to pay damages where the Writ is found to be frivolous. In the instant case, the Claimant/applicant has in paragraph of the affidavit in support of Motion on Notice undertaken to pay damages I the Suit is fund to be frivolous. Learned counsel then urged the court to grant the reliefs sought in the Motion on Notice.
On his part, the learned counsel for the defendants in response to the motion on notice of the Claimant/applicant filed a Counter-affidavit of 35 paragraphs deposed to by Bajulaiye Babajide, a staff of the 1st Defendant/respondent to the suit. There is one exhibit attached to it. There is also a written address of counsel accompanying same. In the said written address learned counsel formulated and argued a single issue for the court’s determination as follows:
Whether the application ought to be granted having regard to the facts before this Honourable Court and the position of the law?
Arguing the issue, learned counsel submitted that the instant application is one which this Honourable Court ought not to grant. What the Applicant seeks is a fundamental departure
