IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.
DATE: MAY 7, 2019 SUIT NO. NICN/AWK/26/2016
BETWEEN:
Miss Onyekachi Okonkwo………………………………………………………….Claimant
AND
Global Appliances Nigeria Ltd…………………………………………………….Defendant
REPRESENTATIONS
P.N. Ogudede with O.J. Aragoba, for the Claimant
T. Shobiye with T. Egwewunmi, S. Osunyomi and G.O. Ogufere for the Defendant
JUDGMENT
The claimant commenced this action by a complaint filed on 19th September, 2016 and accompanied with the statement of facts establishing the cause of action, list of witnesses, statement on oath of Miss Onyekachi Okonkwo, list of document (sic) pleaded and copies of the documents. By the complaint and the statement of facts, the claimant is claiming against the defendant the following reliefs:
The sum of Seven Hundred and Forty Seven Thousand Four Hundred and Ten Naira (N747, 410.00) which is the balance of the money she use (sic) for her medical expenses at Indonesia.
The sum of Twelve Million, Four Hundred and Twenty Thousand Naira (N12,420,000.00) being what the claimant is entitled upon having accident that led to permanent partial incapacitation and the defendant having terminate (sic) her appointment at the age of 29 years until she attained 55 years accordingly to employee’s compensation Act, LFN, 2010.
General damages at Ten Million Naira (N10,000,000.00)
Cost of this action at Two Million Naira (N2,000,000.00)
The defendant entered conditional appearance and then filed its statement of defence dated 11th October, 2016 (together with the defendant’s list of witness, defendant’s witness statement on oath, list of documents and copies of the documents)
In response, the claimant filed a reply to the statement of defence and further statement on oath of Miss Onyekachi Okonkwo both dated 13th February, 2017.
At the trial, the claimant testified on her behalf as CW1, while Tayo Atundaolu, the Branch Manager of the defendant, testified for the defendant as DW1. The claimant’s frontloaded documents were marked as Exhibits A,B,C and D respectively. The defendant’s frontloaded documents were marked as Exhibits 1,2,3, and 4 respectively. The two witnesses adopted their respective frontloaded documents. The defendant’s final written address was filed on 11th July, 2017, while the claimant’s was filed on 11th September, 2017. The defendant’s reply on points of law was filed on 19th September, 2017.
THE CASE OF THE CLAIMANT
The claimant was a Sales Representative under the employment with the defunct Interworld Products Nigerian (sic) Limited, which went under and its assets and liabilities acquired by the defendant company; that claimant was employed by the defendant sometimes in the year 2013; that on the 28th October, 2013 in the course of her employment, she had an accident while in the defendant’s company vehicle on her way to supply the defendant’s product to a customer resulting to injuries and fractures to the claimant and the driver. That the claimant was flown to Indonesia for further treatment; that upon resumption of work in August, 2014, the defendant reimbursed her medical expenses leaving a balance of N747,410.00 unpaid till date; hence the claimant’s claim for special and general damages against the defendant.
THE CASE OF THE DEFENDANT
The defendant admitted that the claimant was a Sales Representative under the employment of the defunct Interworld Products Nigeria Limited but was later employed by the claimant(sic) and that the claimant (sic) never in any way or manner acquired the assets and liabilities of the defunct Interworld Products Nigeria Limited; that the claimant, due to her experience as a Sales Representative with the defunct Interworld Products Nigeria Limited was offered employment by the defendant by a letter of offer of contract appointment dated the 21st October, 2013 and the employment date of the claimant with the defendant was clearly stated in the aforementioned letter to commence on the 1st November, 2013; that the claimant was not yet in the employment of the defendant as at the 28th October, 2013 when the vehicle accident occurred; and that the said vehicle was still the defunct Interworld Products Nigeria Limited Company’s vehicle and claimant still in the employment of the defunct Interworld Products Nigeria Limited. That Interworld Products Nigeria Limited took full responsibility of all the medical bills of the claimant during the period of the claimant’s treatment both at Iyenu Missionary Hospital Ogidi and also at the Ozo Igbo Ndu Orthopaedic Hospital; that it was during the period of the hospitalisation of the claimant that the defendant took over the franchise of the Binatone Brand in Nigeria and gave new appointments to some of the staff of Interworld products Nigeria Limited including the claimant.
That the claimant was discharged from Ozo Igbo Ndu Orthopaedic Hospital on the 4th February, 2014 without any permanent disability or any permanent partial incapacitation of any form and was given a concessional break by the defendant to fully recuperate before the claimant resumes the employment with the defendant; that it was when defendant later discovered that the claimant had returned her official mobile phone and seemingly abandoned her duty; and wrote to the claimant through her last known address by a letter dated 13th May, 2014 of the implication of her abandoning her duty; and an ultimatum to resume work within seven (7) days or be deemed terminated that it got claimant’s email reply dated 22nd May 2014 that claimant informed the defendant that she had travelled to Indonesia for further medical treatment; that defendant accepted the claimant’s apology; that the claimant resumed her employment with the defendant in August, 2014 without any permanent disability or any permanent incapacitation of any form; that in order to encourage the claimant in terms of sale performance, the defendant refunded all the receipted medical expenses the claimant claimed she incurred during her purported treatment in Indonesia; that the claimant continued to work with the defendant till 29th April, 2016 when her appointment was lawfully terminated by the defendant; that the claimant has no locus standi to claim the reliefs being claimed against the defendant and also has no cause of action against the defendant.
THE SUBMISSIONS OF THE DEFENDANT
The defendant submitted a sole issue for determination, namely:
Whether or not the claimant is entitled to bring the present action against the defendant having failed to prove any permanent partial disability of any form as defined within the Employee’s Compensation Act, 2010 as a result of the accident she had while in the employment of the defunct Interworld Products Nigeria Limited and having worked with the defendant for two years and five months before her employment was terminated according to the stipulated procedure in her contract of employment.
The defendant contended that it is not the proper party to be sued as the defendant in this suit but the defunct Interworld Products Nigeria Limited; that the defendant is a separate and distinct legal personality from the defunct Interworld Products Nigeria Limited and cannot be made to bear the liabilities of the defunct Interworld Products Nigeria Limited, if any; that the defendant is not privy to the contract of employment between the defunct Interworld Products Nigeria Limited and the claimant, hence it cannot be made to bear the liabilities of the defunct Interworld Products Nigeria, if any. That courts guard the doctrine of privity of contract and have in plethora of cases held that a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it; citing Basico Motors Ltd v. Woermann- Line (2009) All FWLR (Pt 485) 1634 1640; Nissan (Nig) Ltd v. Yoganathan (2009) All FWLR (Pt 494) 1585 at 1588.
The defendant submitted that courts have decided in plethora of cases that only a rightful party can be sued in a case, not everybody who performed direct or indirect act in the matter leading to the suit is recognised by the law as a proper party to the eventual suit filed in the court of law in respect of the matter; referring to Osigwe v. PSPLS Management Consortium Ltd (2009) All FWLR (Pt 470) 607 at 613; that the claimant in her witness statement on oath pleaded the letter of contract of employment marked as Exhibit ‘A’ by this Honourable Court which states the commencement date of her employment with the defendant to be 1st November, 2013, and that she had the accident on 28th October, 2013 while still in the employment of the defunct Interworld Products Nigeria Limited and before the commencement of her employment with the defendant; that Exhibit ‘C’ of the claimant’s exhibits as marked by the court, which is a photocopy of the form of acceptance given by Reynolds Construction Company Nig. Ltd to the defunct Interworld Products Nigeria Limited against Reynolds Construction Company Nig. Ltd. was strictly between the defunct Interworld Products Nigeria Limited and Reynolds Construction Company Nig. Ltd. and the defendant was not a party to it, neither was it involved in the negotiations that led to the settlement therein; that the claim of the claimant, if any, should therefore be against the Interworld Products Nigeria Limited as the proper party and not against the defendant. That the court in Chief Emmanuel Bello v. Independent National Electoral Commission & 2 ors (2010) 2-3 SC (Pt II) 128 held that in order to determine whether a party is a proper defendant to a suit, all the court needs to do is to examine the claim of the plaintiff before the court; that it is trite that he who asserts must prove; citing section 131 of the Evidence Act, 2011; that the claimant in this suit has neither proved to this court that the defendant is same as the defunct Interworld Products Nigeria Limited nor that the defendant took over the assets and liabilities of the defunct Interworld Products Nigeria Limited; that it is the duty of the plaintiff or petitioner in a civil action to adduce evidence in support of his pleadings; citing PDP v Abari (2009) All FWLR (Pt 496) 1907 at 1908; United Bank of Africa Plc & anor v. Alhaji Babangida Jargaba (2007) 5 SCNJ 127; Chief S.A. Okubule & anor v. Thomas A. Oyagbola & 2 ors (1990) 7 S.C (Pt II) 60; Cardoso v. Daniel & ors (1986) NSCC 587; Congress for Progressive Change (CPC) v. INEC & 41 ors (2011) 12 SC (pt v.) 80; Chief Adefioye Adedeji v. J.O. Oloso & anor (2007) 1 SCNJ 379; Samson Owie v. Solomon E. Ighiwe (2005) 5 SCM 149; Olajide Ibrahim v. S.A. Ojomo & 3 ors (2004) 1 SCM 112; Andong Adake & anor v. Adamu Akun (2003) 11 SCM 88; Adedoyin v. African Petroleum Plc (2014) 11 NWLR 415 at 420. That where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence; that an averment in pleadings is not tantamount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted; referring to Oladejo Adewuyi Ajuwon & 4 ors v. Fadele Akanni & 10 ors (1993) 12 SCNJ 32; that the case of the claimant against the defendant should therefore fail as the defendant is a wrongly sued legal person; citing Abubakar v. Yar’Adua (2009) All FWLR (part 457) 1 at 50.
In further argument of its soles issue, the defendant contended that the claimant failed to discharge the burden of proof on herself that she is permanently partially disabled; that in every civil action, the claimant is expected to prove her case on a preponderance of evidence; that in the instant case, the claimant only made averments in her statement of facts stating she is permanently partially disabled without tending (sic) credible evidence to prove her averments; that an averment in pleadings is not tantamount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted; referring to Oladejo Adewuyi Ajuwon & 4 ors v. Fadele Akanni & 10 ors (supra); that stemming from paragraph 18 of the defendant’s statement of defence, it therefore behooved on the claimant to prove her case of permanent partial disability by tendering credible expert medical evidence documentarily and orally evidencing and proving the facts averred by the claimant; that moreover, the opinion of an expert is required in proving a medical averment as the court is not expected to rely on mere averments in its determination of whether a person is permanently partially disabled or not as the court is not a professional in the field of medicine. That by Himma Merchants Ltd v. Alh. Inuwa Aliyu (1994) 6 SCNJ 87, the best method of satisfying a court about the existence of any matter is by adducing credible, sufficient and satisfactory evidence about it; that the claimant evidenced photographs of her left leg while it was being treated; that this was not disputed by the defendant and it does not have any relevance to whether she can now make use of the leg after the treatment or not; that by Orji v. Textile Mills (Nig) Ltd & ors (2009) 12 SC (pt III) 73, the burden of proof in a case cannot be determined in vacuo but in relation to the issues raised in the pleadings; that no onus is cast on the other side to disprove the fact not proved; referring also to Salzgitter Stahi Gmbh v. Tunji Dosunmi Industries Ltd (2010) 3-5 SC (pt II) 54 and Mark v. Abubakar (2009) All FWLR (pt 451) 855 at 861-862.
The defendant submitted that the burden of proof of the fact that the defendant purchased the assets and liabilities of the defunct Interworld Products Limited; and that the claimant is permanently partially disabled cannot be shifted from the claimant to the defendant as in all civil cases, the person who asserts must prove; that should he fail to do this, his case will remain unproved, however elegant the pleadings; citing Ezeokafor Umejiako & anor v. Ah anonuezenamuo & 10 ors (1990) 1 SC 239; Enechukwu v. Nnamani (2009) All FWLR (pt 492) 1087 at 1097 and Bamgbegin v. Omare (2009) All FWLR (pt 484) 1460 at 1465. That the claimant having failed to lead evidence in respect of her averment of permanent partial disability is deemed to have abandoned the averment; the defendant having denied same in its statement of defence; that in the light of the above case laws, the court is urged to hold that the averment of permanent partial disability has been abandoned by the claimant; referring also to Michael Eyo v. Emeka Collins Onuoha & anor (2011) 2-3 SC (pt I) 220; Cardoso v. Daniel & ors (1986) 1 NSCC 387 and Anthony Odunukwe v. The Administrator General, East Central State (1978) 1 SC 19.
That the defendant having established from the plethora of cases cited that the burden of proof that the defendant purchased the assets and liabilities of the defunct Interworld Products Nigeria Limited and that the claimant is permanently partially disabled rests on the claimant; and the claimant, it is submitted, having failed to prove the aforementioned by tendering cogent evidence in support of her averments has abandoned the averments and the instant case should be dismissed as a result of same and substantial cost be awarded against the claimant in favour of the defendant.
It is also the defendant’s contention that this Honourable Court lacks the requisite jurisdiction to adjudicate on this matter as the claimant did not fulfil the condition precedent laid down by the Employee’s Compensation Act before instituting this matter before this Honourable Court; citing Section 6(1)-(5) of the Act. That an application for compensation must be made to the Board within one year of the occurrence of the accident that resulted in the disability claimed or within three years for special circumstances; that the Board would then give its decision on the said application and such decisions can be appealed to the Board itself for a review of its decision; that it is only after the Board has reviewed its decision and a party is aggrieved by the decision of the appeal to the Board that the appeal shall lie to the National Industrial Court; that this is provided for in section 55 (1) – (4) of the Employee’s Compensation Act, 2010. That the claimant jumped the gun by bringing this matter before this Honourable Court at the first instance, as this court is an appellate court under Employee’s Compensation Act, 2010, hence, this court lacks the requisite jurisdiction to adjudicate on this matter in the first instance; referring to Ogunleye v. Oke (2009) All FWLR (pt 469) 552 at 557; that fulfillment (sic) of condition precedent is fundamental to the validity of a suit before a court of law; referring to Utuk v. Official Liquidator (2009) All FWLR (pt 475) 1774 at 1779; Oseyomon v. Ojo (1997) 7 SCNJ 377; Madukolu v. Nkemdilim (1962) SCNLR 341 and Shelim v. Gobang (1992) 4 SCNJ 58. That the issue of jurisdiction is one that can be raised at any stage of the proceedings; and this was the decision of the court in Ogunleye v. Oke (2009) All FWLR (pt 469) 552 at 556 and Shelim v. Gobang (supra). Defendant submitted that failure of the claimant to follow the procedure for application for compensation as laid down in the Employee’s Compensation Act, 2010 which the claimant relied on in commencing this action before the court is fundamental to the jurisdiction of this Honourable Court. The defendant urged the court to so hold and this suit be dismissed as a result of same with substantial cost awarded against the claimant in favour of the defendant.
The defendant submitted that the termination of the contract of Appointment of the claimant on the 29th April, 2016 was lawful and with due regard to the stipulated procedure in the offer of contract appointment dated 21st October, 2013, particularly paragraphs 11.1 and 11.2 thereof; that the claimant while under cross- examination admitted being paid two weeks salary in lieu of notice of termination of contract of employment between it (sic) and the defendant (sic); referring to WAEC v. Obisesan (2009) All FWLR 1619 at 1620; that in the instant case, the defendant paid two weeks salary in lieu of notice to the claimant and the termination followed the terms of contract between the parties; that the termination of the contract appointment of the claimant by the defendant was lawful; and urged the court to so hold.
In conclusion, learned counsel to the defendant submitted on behalf of the defendant that the claimant has failed to prove any permanent partial disability nor that the defendant is liable to bear the liabilities of the defunct Interworld Products Nigeria Limited, if any, as the claimant failed to prove that the defendant purchased the assets and liabilities of the defunct Interworld Products Nigeria Limited; that the provision of section 131 of the Evidence Act, 2011 which states that he who asserts must prove the assertion as reiterated in Enechukwu v. Nnamani (2009) All FWLR (pt 492) 1082 at 1097 has therefore not been satisfied by the claimant; neither did the claimant fulfill (sic) the preconditions of this instant suit as provided by the Employee’s Compensation Act, 2010 before commencing this instant suit before this Honourable court, thereby robbing this Honourable court of the requisite jurisdiction to adjudicate over this matter; that the court is therefore urged to dismiss the claimant’s case for lack of jurisdiction for failure of the claimant to prove her case on a preponderance of evidence against the defendant; and the court to hold that the claimant’s claim is frivolous, speculative, unreasonable, gold-digging and therefore lacks merit; that the court is urged to award substantial cost in favour of the defendant against the claimant.
THE SUBMISSIONS OF THE CLAIMANT
The claimant submitted three issues for determination, namely:
Whether the claimant by her pleadings and exhibits evidence proved its (sic) claim against the defendant on the standard of proof in civil cases that will entitle her to judgment.
Whether the evidence of the defendant, witness and exhibits are materially contradicted with each other.
Whether a certified medical certificate of the claimant can be tender (sic) with its final address.
On Issue One, the claimant submitted that she has established the standard of proof in civil cases and that the onus is on him to prove same; that in civil cases, proof is based on balance of probabilities and it rest (sic) on the privity who assents (sic) the affirmative of the issue; referring to Offordum v. Nigeria Army (2015) 1 NWLR (pt. 1439) 158 para 21. That in the instant case, the claimant adopt (sic) her written deposition and exhibits; that it is the claimant (sic) claim as per statement of facts establishing the cause of action at paragraph 2 that the defendant purchased assets and liability (management) of the defunct Interworld Products Nigeria (sic) and that she was re-employed by the defendant on or before 21st October, 2013; that the defendant however confirm (sic) same by its paragraph (sic) 2 & (sic) 10 of its statement of defence and Exhibit (sic) dated 31st May, 2016. That according to Black’s Law Dictionary (9th) Nineth Edition by Brvan (sic) A. Garner- no page supplied- defined the word “TAKE OVER” to mean the acquisition of ownership or control of a corporation: A takeover is typically accomplished by a purchase of shares or assets a tender offer (sic); also that the word “GRANT” was defined to mean at page 768 to mean an agreement that creates a right or interest of a person or that effects a transfer of a right or interest from one person to another. That it is also in evidence vide defendant’s exhibit dated 31st May, 2016 at the second page before the last paragraph where the defendant admitted to have been paid the claimant (sic) monthly salaries while in Indonesia state (sic); that the claimant state (sic) at paragraph 14 of her statement of fact establishing the cause of action that upon resumption of work on August, 2014 the defendant demanded for original hospital receipts of her medical’s (sic) expenses she incurred for her treatment at Indonesia, which she availed the defendant before the partly (sic) sum of Six Hundred Naira (N600,000.00) was eventually paid to her and thereby leaving a balance of Seven Hundred and Forty Seven Thousand, Four Hundred and Ten Naira (474,410.00) unpaid till date; that on the other hand the defendant at per (sic) paragraph 20 of her (sic) statement of defence admitted (sic) to refund to the claimant all the receipted medical expenses, the claimant claimed she incurred during her treatment in Indonesia.
The claimant went on that on the 4th day of June, 2017 when the defendant witness per Tayo Atundaolu (sic) was been (sic) cross-examined by the claimant (sic) counsel, upon given prior notice to produce per paragraph 14 of the claimant (sic) statement of facts establishing the cause of action told the court that he did not produce same; that by section 245 of the Evidence Act, 2011 when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the documents as evidence without the consent of the other party or the order of the court and also by section 20 of the Evidence Act, 2011, an admission is a statement, oral or documentary, or conduct which suggests any inferences as to any fact is (sic) issue or relevant facts and which is made by any of the persons and in the circumstances, hereafter mentioned in this act(sic); that based on the fact above which is unchallenged the court ought to accept the claimant (sic) evidence in proof of the issue in contest; referring to Best Vision Cont. Ltd. v. U.A.C. N.P. D.C. Plc (2003) 13 NWLR (pt 838) 594 Ratio 8 and Oyoybiare v. Onamurhomuu (1999) 10 NWLR (pt 621) 23 at 34-35 (SC).
The Claimant continued that it is also in evidence that the Claimant was 29 years at the time of the accident and her injury being a permanent partial incapacity is entitled to 90% of her monthly remuneration as compensation until she attains the age of 55 years which is Twelve Million Four Hundred and Twenty Thousand Naira (N12,420,000.00) being what the Claimant is entitled for (sic) according to Employee’s Compensation Act, 2010; that this issue was unchallenged or contravened (sic) by the defendant when evidence is unchallenged, the Court ought to accept such evidence in proof of the issue in contest; referring to Folorunso & anor v. Shalous (1994) 3 NWLR (pt 333) p. 413 at 433 paras. B-H and Exhibit (5 photographs of claimant). that this same fact cannot be challenged or contradicted with the defendant counsel final address; that the law is trite that no matter how beautiful final address is cannot form part of evidence; citing Vassilev v. Paas Industry Ltd (2000) All FWLR (pt 19) page 418 CA.; that address of counsel cannot disprove and demolish point in issue; referring to Sanyaolu v. INEC (1997) 7 NWLR (pt 612) page 600 CA at page 611 para C-D.
The claimant proceeded that it is in evidence that the defendant negotiated the accident and make (sic) the Reybold (sic) Construction Company Nigeria Limited to replace the affected vehicle with a new vehicle which is in the custody of the defendant and reasonable amount of money paid as compensation and Nine Hundred and Nineteen Thousand, Three Hundred Naira (N919,300.00) paid to the Claimant which she wittiness (sic) but defendant used the money to settle Claimant and driver (sic) bills at Iyienu Missionary Hospital and Ozo Igbo Ndu Orthopaedic Hospital; that by virtue of section 132 in (sic) the Interpretation Act, 1990 of a document oral or parol evidence will not be admissible among other things to contradict or after (sic) it where the document is clear and unambiguous; referring to Bunge v. Governor of Rivers state (2006) 12 NWLR (pt 995) 573 at 616-617 paras G-A. That from the Exhibit C tender (sic) by the defendant dated 31st May, 2016, 2nd page at 2nd paragraph thereof, the defendant stated that “during the period of the hospitalization of your client between 29th October 2013 and 4th February 2014 Interworld Products Nigeria Limited closed up business and our client (Global Appliances Nigeria Limited) took over the franchise of the Binatone Brand in Nigeria. However, the management of our client considered your client and gave her a new appointment;” that a good look at exhibit tendered by the Claimant and mentioned at paragraph 13 of her statement of facts establishing the course (sic) of action, where the Claimant pleaded form of acceptance presented by Reynolds Construction Company (Nig) Ltd dated 13th October, 2014 clearly shows that Defunct Interworld Products Nigeria Limited is no more existing but the defendant Global Appliances Nigeria Limited who negotiated the accident on behalf of the defunct Interwrold Product (sic) Nigeria Limited as its parents (sic) Company and have (sic) its address at Afprint Industrial Estate Iyana Iso, Lagos; that the denials of the defendant are of no moment but calculated attempt to deceive and put wool on the eyes of the court not to see their act and to escape from liabilities of the Defunct Interworld Products Nigeria Limited; that it is in evidence that as resulted effect of the accident, the claimant no longer uses her right limb (leg) to jump, kneel or walk well, with damaged/disfigured face and chest, has suffered permanent partial incapacitation that entitled her to specific (sic) and general damage (sic). That it is well established that unchallenged evidence of special damages can be accepted as proof on (sic) the claim; referring to Bashali v. Allied Commercial Exporter Ltd (1961) All NLR (pt 4) 917; (1961) 2 SCNLR 322 and Incer Nigeria Ltd & anor v. Mrs. Mr. (sic) Adegboye (1985) 2 NWLR (pt 8) 453.
Based on the facts above, the claimant submitted that she has established the standard of proof in civil case (sic) which is proof on balance of probabilities; referring to Offordum v. Nigerian Army (supra); and urged the court to grant the claim of the claimant as per her reliefs.
Issue Two is whether the evidence of the defendant vide statement of defence, DW1 witness Tayo Atundaolu and exhibits are materially contradicted with themselves. To the claimant, where there are material contradiction in the evidence adduced by a party in a proceedings, the court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow the entire evidence must be rejected; referring to Kayili v. Yilbuk (2015) 7 NWLR (pt 1457) at 40 para 18 S.C; that in the instant case, the entire evidence of the defendant’s evidence statement of defence (sic) dated 7th day of October 2016 and filled(sic) on 11th day of October, 2016; that paragraphs 2,3 and 10 of the said statement of defence materially contradicted itself and must be jettisoned; that the exhibit tender(sic) through the defendants (sic) witness TAYO ATUNDAOLU and his testimony are entirely materially contradicting; referring again to the exhibit dated 31st May, 2016 particularly 2nd paragraph thereof; what DW1 said under cross-examination; and paragraph 20 of the statement of defence.
Finally on Issue Two, the claimant submitted that the totality of the defendant (sic) statement of defence and that of DW1 and the defendant’s exhibits are materially contradicted to each other and the entire evidence must be rejected; referring to Mogaiji (sic) v. Cadbury (Nig) Ltd (1985) 2 NWLR (pt 7) 393 and Kayili v. Yilbuk (supra); and urged the court to reject the entire evidence of the defendant for being materially contradicted in its entirety and to grant the claim of the claimant for having proof (sic) its claim beyond preponderance of evidence.
Issue Three is whether a certified medical certificate of the claimant can be tender (sic) with this final address. To the claimant, for proper authentication of a public document by a designated official to enable its admissibility in evidence, the essence of same is to obviate the necessity of calling officials to court to testify to the genuiness of copies made from original document or record of a public nature; and to preserve those original document or record from being removed from their proper place of custody through requests that they be tendered in court; referring to Anyakore v. Obiakor (no citation supplied by the claimant); and to section 104 and 105 of the Evidence Act, 2011. The claimant further submitted that a certified document can be tendered from the bar once its certified true copy was tendered having been duly certified and signed as required by the Evidence Act as instant case the document will be admitted on mere production by the claimant; referring to Ogbunyinya v. Okudo (1979) 6-9 SC 37 and Aina v. Jinadu (1992) 4 NWLR (pt 233) 91; that attaching certified copy of medical certificate signed by Dr. O.C. Ogugau (Medical Officer) dated 8th day of April, 2016 from Anambra State hospital board, General Hospital Onitsha with the claimant Final Address is tantamount to tendering certified document from the Bar; referring to Agagu v. Dawodu (1990) 7 NWLR 56.
In reply to the defendant’s final address, the claimant submitted that the defendant before this court is the proper defendant who is the parent company of the subsidiary company and took over the franchise of the Binatone Brand in Nigeria; that however, the management of the defendant considered the claimant and gave her a new appointment; citing defendant’s exhibit dated 31st May, 2016; and that during the period of the hospitalised (sic) of the claimant between 29th October, 2013 and February 2014 Interworld Products Nigeria Limited closed up business and the defendant took over and negotiated the accident with RCC (Reynolds Construction Company Nigeria Limited on 13th October, 2014; that during this period the defunct Interworld Products (sic) had closed up business; referring to Form of Acceptance tendered by the claimant dated 13th October, 2014; and that the defendant is the proper party before this Honurable Court; that the doctrine of privity of contract pleaded in the defendants (sic) final address does not apply here because there are exception (sic) to the said privity of contract which is assignment of chosen (sic) in action and Novation; that this is a legal expression used to described (sic) all personal right of property which can only be claimed or enforced by action and not by taking physical possession, these include debts, patents, copyrights, rights under a trust, legacies; that however, ordinary contractual right are still assignable under section 25 (6) of the Judicature Act, 1973 and in equity and also a collateral contract which is also another exception in this case is one that accompanies the main contract between two parties; that it is one involving either of them and a third party; that a classic example of this happened in England in 1952 in the case of Shankin Pier v. Detel Products Ltd (no citation supplied by the claimant).
The claimant submitted that the laid down procedure in section 6 and section 55 of the Employee’s Compensation Act, 2010 does not apply to the claimant; that a good examination of exhibit “C” and Exhibit dated 31st May, 2016 clearly shows that the defendant on behalf of the defunct Interworld Products Nigeria Limited negotiated the accident and the Reynolds Construction Company (Nig) Ltd pay compensation to the claimant which the defendant used in offsetting medicals bill of the claimant and the driver; that it is therefore uncalled for the defendant to say that the claimant did not comply with the laid down procedure in the Employee’s Compensation Act, 2010; that moreover, it is in evidence that in exhibit’s (sic) dated 31st May, 2016, that the defunct Interworld Products Nigeria Limited is no longer in business when the said compensation was paid to the defendant; that it is therefore the duty of the defendant or that of his counsel to properly gather (sic) the court in dispensation of justice. That the court has the competence to adjudicate in this matter wherein the claimant has comply (sic) with the laid down procedure in the instant case; referring to Madukolu v. Nkemdilim (supra); that it is in evidence that upon the claimant (sic) request to pay her medical expenses and compensation which had already negotiated, her job was unlawfully terminated; citing exhibits tender (sic) by the claimant dated 23rd May, 2016 and 14th June, 2016. That from the facts cases and exhibits cited above the claimant has proved the beyond of proof (sic) beyond reasonable doubt; and urged “on Sir,” (sic) to grant all the claimant (sic) relief as per her statement of claim.
DEFENDANT’S REPLY ON POINT OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS DATED 21ST DAY OF AUGUST, 2017
The defendant reacted on points of law. On whether taking over a franchise is same as takeover of a company, the defendant submitted that a franchise by all definitions known to law is distinct from a company; that taking over of a franchise is different from the takeover of a company; that “franchise” is defined in the Seventh Edition of the Black’s Law Dictionary as: “sole right granted by the owner of a trademark or tradename to engage in business or to sell a good or service in a certain area”; and that a company is defined as: “A corporation- or less commonly an association, partnership, or union- that carries on a commercial or industrial enterprise;” referring to Agro Allied Dev. v. M.V. Northern Reefer (2009) All FWLR (pt 481) 862 at 864 in which a company or existing companies is defined under section 650 of the Companies and Allied Matters Act to mean a company formed and registered in Nigeria before and in existence on the commencement of this Act.” That the Forth Edition of the Oxford Dictionary of Law defines franchise as: “A licence given to a manufacturer, distributor, trader, etc, to enable them to manufacture or sell a named product or service in a particular area for a stated period;” and a company as: “An association formed to conduct business or other activities in the name of the association. Most companies are incorporated and therefore have a legal personality distinct from those of their members;” that it is submitted that from the above definition of “Franchise” and “Company” the taking over of a franchise is totally different from the takeover of a company.
On the position of the law on evidence not pleaded nor tendered during trial but attached to the claimant’s Final Written Address, the defendant contended that it is settled law that evidence not pleaded nor tendered during trial cannot be attached to a Final Written Address; that it is akin to springing a surprise on the defendant because the essence of frontloading of processes and evidence before trial is to give the other party the opportunity to react to it; that moreover, it is settled law that evidence cannot be led in a final written address; referring to All Nigeria Peoples’ Party v. Usman (2009) All FWLR (Pt 463) 1292 at 1309; Atamah v. Ebosele (2009) All FWLR (Pt 473) 1385 at 1387; Ojo v. Federal Republic of Nigeria (2009) All FWLR (Pt. 494) 1461 at 1470 to the effect that address of counsel no matter how beautifully presented cannot take the place of evidence in a trial; and that address of counsel cannot substitute for evidence that is supposed to be led before the court; citing Baba-Ahmed v. Adamu (2009) All FWLR (Pt 473) 1257 at 1259. It was submitted by counsel on behalf of the defendant that the tendering of evidence by attaching same to a Final Address is unknown to law and such should be discountenanced by this Honourable Court.
On the position of the law in respect of the failure of the claimant to adduce evidence in support of her claims against the defendant, it is the defendant’s contention that the claimant has failed to prove her case against the defendant; that the claimant failed to prove her case of permanent partial disability as she did not lead evidence on same during the trial of the matter; that by University of Ilorin v. Adesina (2009) All FWLR (pt 487) 56 at 77: “No matter how impressive a party’s pleadings may be, it is of no consequence if not supported by concrete and credible evidence in proof thereof. Where evidence is not led in support of pleadings, the matter or issue pleaded are deemed to be abandoned;” referring also to I.N.E.C. v. A.C. (2009) All FWLR (pt 480) 732 at 753; Obiche v. Adetora (2009) All FWLR (pt. 478) 345 at 355 and Atamah v. Ebosele (supra). the defendant contended further that the claimant did not prove that the defendant took over the defunct Interworld Products Nigeria Limited as she did not adduce any evidence to prove same, hence the onus to disprove same did not shift to the defendant; referring to Smithkline Beecham v. Farmex Ltd (2009) All FWLR (Pt 499) 564 at 568-569. It is humbly submitted on behalf of the defendant that the claimant has failed to prove any permanent partial disability nor that the defendant is liable to bear the liabilities of the defunct Interworld Products Nigeria Ltd, if any, as the claimant failed to prove that the defendant took over the defunct Interworld Products Nigeria Limited; that taking over of a franchise is different from the takeover of a company; and the court is urged to so hold.
The defendant concluded by urging the court to hold that the claimant’s claim is frivolous, speculative, unreasonable, gold-digging and therefore lacks merit; and this court is urged to award substantial cost in favour of the defendant against the claimant.
DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION
The defendant filed a notice of preliminary objection on 29th November, 2018 praying the court for an order striking out in its entirety the claimant’s action on account that the defendant is not the proper party to be sued as the defendant in this action as the claimant has no cause of action against the defendant; and for an order striking out in its entirety the claimant’s action on account that this Honourable Court lacks the requisite jurisdiction to adjudicate on this matter at first instance.
The grounds upon which the defendant’s application is predicated are that: 1. The claimant/Respondent has no cause of action against the defendant/Applicant as the claimant/Respondent was still in the employment of Interworld Products Nigeria Limited when the accident occurred on the 28th day of October, 2013 and as such the defendant/Applicant being a separate and distinct personality from Interworld Products Nigeria Limited is not the proper party to be sued by the claimant/Respondent; and 2. That the Honourable Court lacks the requisite jurisdiction to adjudicate on this matter as the claimant/Respondent did not fulfil the conditions precedent as provided by section 6 of the Employee’s Compensation Act, 2010 before instituting this matter before this Honourable Court.
The defendant submitted two issues for determination, namely:
Whether or not the defendant/Applicant is the proper party to be sued by the claimant/respondent.
Whether or not this Honourable Court has the requisite jurisdiction to adjudicate on this matter.
On Issue One, the defendant submitted that the defendant/applicant is not the proper party to be sued by the claimant/respondent; that the defendant/applicant is not the proper party to be sued as the defendant/applicant in this case but Interworld products Nigeria Limited; that the defendant/applicant is a separate and distinct legal personality from Interworld Products Nigeria Limited and cannot be made to bear any purported liabilities of Interworld Products Nigeria Limited; that the defendant/applicant is not privy to the contract of employment between Interworld Products Nigeria Limited and the claimant, hence it cannot be made to bear the liabilities of Interworld Products Nigeria Limited, if any. That it is trite that the courts would always respect the doctrine of privity of contract and have in plethora of cases held that a contract affects the parties thereto and cannot be enforced against a person who is not a party to it; referring to Basico Motors Ltd v. Woermann- Line (supra); Nissan (Nig) Ltd v. Yoganathan (supra); that the courts have also decided in plethora of cases that only a rightful party can be sued in a case, not everybody who performed direct or indirect act in the matter leading to the suit is recognised by the law as a proper party to the eventual suit filed in the court of law in respect of the matter; referring to Osigwe v. PSPLS Management Consortium Ltd (Supra); that by Chief Emmanuel Bello v. INEC & 2 ors (supra) all the court needs to do is to examine the claim of the plaintiff before the court to determine whether a party is a proper defendant to a suit.
To the defendant/applicant, the claimant/respondent in her witness statement on oath pleaded the letter of contract of employment which states the commencement date of her employment with the defendant/applicant as 1st November, 2013 while still in the employment of Interworld Products Nigeria Limited and before the commencement of her employment with the defendant/applicant. That it is also worthy of note that the photocopy of the Form of Acceptance given by Reynolds Construction Company Nig. Ltd to the Interworld Products Nigeria Limited which has been frontloaded by the claimant/respondent in the list of documents pleaded, evidenced that the settlement of the accident claim by Interworld Products Nigeria Limited against Reynolds Construction Company Nig. Ltd was strictly between Interworld Products Nigeria Limited and Reynolds Construction Company Nig. Ltd; that the defendant/ applicant was not a party to it, neither was the defendant/ applicant involved in the negotiation that led to the settlement therein; that stemming from the above, the defendant/ applicant submitted that the claim of the claimant/respondent, if any, should be against Interworld Products Nigeria Limited as the proper party and not against the defendant/applicant and as such, the defendant/applicant is a wrong person to be sued in the instant suit; referring to Abubakar v. Yar’Adua (supra); that the case of the claimant/respondent against the defendant/applicant should be struck out in entirety by this court as the defendant/applicant was wrongly sued by the claimant/respondent; that by Himma Merchants Ltd v. Alh. Inuwa Aliyu (supra) the court posited that the best method of satisfying a court about the existence of any matter is by adducing credible, sufficient and satisfactory evidence about it; that the claimant /respondent has failed to frontload any public document from the Corporate Affairs Commission evidencing the acquisition of Interworld Products Nigeria Limited by the defendant/applicant in the claimant’s list of documents pleaded.
In the light of all of the above, the defendant/applicant submitted that it is not the proper party to be sued by the claimant/respondent; and urged the court to so hold; and resolve issue one in favour of the defendant/applicant.
Regarding Issue Two, whether or not this Honourable Court has the requisite jurisdiction to adjudicate on this matter, the defendant/applicant submitted that the claimant/respondent did not fulfil the condition precedent laid down by the Employee’s (sic) Compensation Act before instituting this matter before this Honourable Court and by nature of which this Honourable Court lacks jurisdiction to adjudicate on this matter; referring to section 6 of the Employee’s Compensation Act,2010; that stemming from the provision of section 6 of the Employee’s Compensation Act,2010 for an employee to claim under the Act, an application for compensation must be made to the Board within one year of the occurrence of the accident that resulted in the disability claimed or within three years for special circumstances; that the Board would then give its decision on the said application and such decisions can be appealed to the Board itself for a review of its decision; that it is only after the Board has reviewed its decision and a party is aggrieved by the decision of the appeal made to the Board that an appeal shall lie to the National Industrial Court; citing section 55 of the Act.
The defendant/applicant submitted that the claimant/respondent jumped the gun by bringing this matter before this Honourable Court at the first instance, as this court is an appellate court under Employee’s Compensation Act, 2010, hence, this Honourable Court lacks the requisite jurisdiction to adjudicate on this matter at first instance, referring to Ogunleye v. Oke (supra); that fulfilment of conditions precedent is fundamental to the validity of a suit before a court of law; referring to Utuk v. Official Liquidator (supra) Oseyomon v. Ojo (supra); Madukolu v. Nkemdilim (supra) and Shelin v. Gobang (supra); that a court is competent when: 1. It is properly constituted with respect to the number and qualification of its members; 2. The subject matter of the action is within its jurisdiction; 3. The action is initiated by due process of law; and 4. Any condition precedent to the exercise of its jurisdiction has been fulfilled and any defect in the competence of a court renders the proceedings before it a nullity, a defect of competence being extrinsic to the adjudication. That the issue of jurisdiction is one that can be raised at any stage of the proceedings; referring to Ogunleye v. Oke (supra) and Shelin v. Gobang (supra). The defendant/applicant submitted that failure of the claimant/respondent to follow the procedure for application for compensation as laid down in the Employee’s Compensation Act, 2010 which the claimant/respondent relied on in commencing this action before this Honourable Court is fundamental to the jurisdiction of this Honourable Court and as such this Honourable Court lacks jurisdiction to adjudicate on this suit. The defendant /applicant urged the court to so hold and resolve Issue Two in favour of the defendant/applicant.
In conclusion, stemming from the facts, statutes and decided cases cited, the defendant/applicant urged the court to resolve the two issues for determination in favour of the defendant/applicant and dismiss the claimant/respondent’s suit in its entirety; and to award substantial cost in favour of the defendant/applicant against the claimant/respondent.
In reaction to the defendant/applicant’s notice of preliminary objection, the claimant/respondent submitted a sole issue for determination, namely: whether the defendant is the proper party before the court and have (sic) jurisdiction to trial (sic). The claimant submitted that the defendant is the proper party to this suit; that a good examinations (sic) of Exhibit A and Exhibit B the defendant clearly show (sic) that the Interworld Products Nigeria Limited are (sic) same persons (sic) with the defendant; that they have been the same directors which was clearly inserted at the foot page of the Exhibits and again have the same Administrative Manager, Mr. Olayinka Oladapo the maker of both Exhibits including Exhibit C and D; that in Exhibit D titled abandonment of duty (sic) by the defendant and signed by the Administrative Manager, Mr. Olayinka Oladapo the defendant expressly admitted that the claimant had an accident in the course of her employment with Company (the defendant). The claimant cited paragraph 2 of Exhibit C and submitted that fact admitted need no further prove (sic) as provided in section 20 of the Evidence Act, 2011 and by Victabio Ventures Ltd v. W. Van Der Zwan & Z.N.B.V. (2009) All FWLR (pt490) 756 CA; the letter said was dated 13th May, 2014 and the defendant is before this honourable (sic) saying that there are not proper party to be sued. Manipulating this honourable (sic) with fact that can never be believed (sic) by anyone, this is to pool(sic) wool on the eyes of the court not to see; that the defendant are(sic) the proper party as defendants (sic) before this honourable court all these of defendant (sic) manipulation is to run away from liability and the defendant purchased assets and liability of the defunct Interworld Products Nigeria Limited and made Exhibit (sic) A,B, C and D and can never say that they are not a party to the contract when it is not in doubt there(sic) are the same persons; referring to Green v. Green (1987) 3 NWLR (pt61) 480. The claimant urged the court to dismiss this application with reasonable cost.
The claimant’s contention is that the court has the competence to adjudicate in this matter wherein the claimant has comply (sic) with the laid down procedure in the instant case as provided in section 6 of the Employee’s Compensation act (sic) 2010 form of acceptance which was Exhibit E was fill (sic) and signed by the claimant /respondent as presented to Reynolds Construction Company (Nig) Ltd. dated 13th October, 2014 and it clearly shows that defunct Interworld Product Nigeria Limited as same company and has its address at Apfrint Industrial Estate Iyana Iso, Lagos with a reasonable amount of money paid as compensation and Nine Hundred Naira (N919,300.00) paid to claimant/respondent for her continuous hospital treatment which, she witness but the defendant used the said money to settle medical bills at Iyienu Missionary Hospital and Ozoigbo Ndu Orthopaedic Hospital for both the claimant/respondent and the driver by so doing the claimant have (sic) comply with section 6 of the Employee’s Compensation act (sic) 2010.
The claimant went on that: “ Further more, upon the claimant /respondent applied to the board to pay all medical expense sometime in April,2016, the defendant demanded for original Hospital Receipts of claimant medicals expenses claimant/Respondent incurred for her treatment at Indonesia, which claimant/Respondent PERSONALLY availed the defendant before the paltry sum of Six Hundred Thousand Naira (N600,000.00) was eventually paid to her on the month of April, 2016 and thereby leaving a balance of Seven Hundred and Forty Seven Thousand, Four Hundred and Ten Naira (N747,410.00) unpaid till date and therefore releived her duty is in compliance with section 55 of the Employee’s Compensation Act 2010;” that the claimant/Respondent lodge (sic) appeal to the defendant through her attorney NAMANI SIME & PARTNERS dated 23rd May, 2016 and returned correspondences from the defendant attorney Mathmer legal practitioners dated 31st May, 2016; that another passionate appeal was made again by the claimant/Respondent attorney to the defendant dated 14th June,2016, after the claimant/Applicant (sic) was unlawfully terminate her job from her (sic) before instituting this suit and there was returned correspondences from the defendant attorney dated 27th June, 2016 was sent to claimant/Respondent through her attorney the both (sic) correspondences marked as Exhibit G. that from the fore going the claimant/Respondent comply (sic) as required by the provision of sections 6 and 55 of the Employee’s Compensation act (sic) 2010, and thereby activate (sic) the jurisdiction of this honourable court; referring to Madukolu v. Nkemdilim (supra). To the claimant, “ it is the law in this regard is settled beyond peradventure in the words of Achike, JSC (of the blessed memory) in FSB International Bank Ltd vs Imano Nig. Ltd (2000) 11 NWLR (pt 679) 620 at 639 C-D, he stated that it is erroneous for a court, whether trial or appellate in determining an interlocutory matter to succumb to the temptation of deciding the substantive case that is yet to be agitated by the parties, that will evoke a serious outrage. See also C.G.C Nig. Ltd Vs Baba (2004) 10 NWLR (pt. 852) 658 at 679.” In conclusion, the claimant urged the court to dismiss this application with impunity (sic) cost.
COURT’S DECISION
I have carefully considered the processes and submissions of the parties as far as this case is concerned. In doing that, I am mindful that a claim is circumscribed by the relief claimed. See Gabriel Ativie v. Kabelmetal Nig. Ltd LPELR- 591 (SC); (2008) 10 NWLR (pt 1095) 399; (2008) 5-6 SC (pt II) 407. The reliefs prayed for by the claimant basically consists of special and general damages; and relate to: the sum of N 747,410.00 (Seven Hundred and Forty Seven Thousand, Four Hundred and Ten Naira); the sum of N12, 420, 000.00 (Twelve Million, Four Hundred and
Twenty Thousand Naira) being what the claimant is entitled upon having accident that led to permanent partial incapacitation and the defendant having terminate (sic) her appointment at the age of 29 years until she attained 55years according to employee’s Compensation ACT, LFN, 2010 (sic); general damage at Ten Million Naira; cost of this action at Two Million Naira.
Before addressing these reliefs, it is necessary to consider one or two things. In the course of considering the processes and submissions of the parties in this case, I regrettably observed that the claimant’s processes and submissions were strewn with embarrassing and ridiculous mistakes and I was shocked and surprised that carelessness could be advertised with horrible tenses and grammatical errors. A few of these will suffice. In the statement of facts establishing the cause of action, it is stated in paragraph 10 thus: “The claimant avers that a query was sent to her by her elder sister for not receiving an official letter to flown her to Indonesia….” Paragraph 11 states thus: “ The claimant added future that ….” Paragraph 12 states thus: “The claimant added that she hitherto make unlimited use of her both legs….” Paragraph 13 states thus: “The claimant avers that the defendant negotiated the accident and make the Reynold (sic) Construction Company….” Paragraph 15 states thus: “ That claimant avers that she engages the services of ….” Paragraph 16 states that: “The claimant added that she is 29 years at the time of the accident….” Paragraphs 3, 7, 8, 10, 11, 13, 14 and 15 of the statement on oath of Miss Onyekachi Okonkwo, claimant in this suit, consistently open with the following words: “That I avers that…”; while paragraph 5 opens with the words: “That I adds that….” In the claimant (sic) final written address, it is stated in paragraph 3.8 that: “On the 4th day of June, 2017, when the defendant witness per Tayo Atundaolu was been cross-examined…” In paragraph 4.8 of her final written address, the claimant urged the court “to grant the claim of the claimant for having proof its claim beyond preponderance of evidence.” In paragraph 6.1 of the final address, the claimant submitted that “… during the period of the hospitalised of the claimant between 29th October, 2013 and February, 2014…”; and in 6.2 the claimant argued that “there are exception (sic) to the said privity of contract which is assignment of chosen (sic) in action…”; in paragraph 6.4 the claimant contended that “The court has competence to adjudicate in this matter wherein the claimant has comply (sic) with the laid down procedure….” In my trepidatious view, and as I observed earlier, the above rendition by counsel to the claimant is grossly and monstrously horrible, and I so hold. In the words of Oputa, JSC in Udofia v. The State (1988) 2 NSCC 113: “This case… exposes the laxity of seriousness of some young members of the profession. It mirrors and reflects the general and steady decline in the standard of professional responsibility.”
It is trite that “counsel owe not only the courts but indeed owe the legal profession and themselves the duty of care in ensuring that documents drafted for use in courts meet the minimum standard of quality befitting the learned profession. This is more so in this meteoric and jet age of the 21st century when the lawyer’s role as the beacon of learning and skill is much placed on the front burner of high expectations and meticulous scrutiny or searchlight.” Per Danjuma, J.C.A. in Magaji v. Kuyanbana (2013) LPELR-20785 (CA). On the need for a counsel to display proper legal training in the preparation of court processes, the Court of Appeal in Yusuf Shaibu Obosi v. Nigerian Postal Service & ors (2013) LPELR-21397 CA, per Abiru, J.C.A. held that:
“…Drafting is an important tool in advocacy. A solicitor who could not present his client’s case clearly in the brief, if it is a case in the appellate courts, or in the pleadings, if it is a case before the High Courts or Federal High Court could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings.” Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism.” The need for a counsel to display proper legal training in the preparation of court processes was emphasized by Aderemi, JCA (now JSC) in MV Arabella v. Nigerian Agricultural Insurance Corporation (2002) 15 NWLR (pt 791) 570. The learned Justice stated thus at page 582: “To say the least, the above five issues raised by the cross-appellant are very horrible. They do not indicate that a person with legal training has drafted them. It seems to me that an ordinary prose writer who has no learning in the profession of law will produce far better and knowledgeable issues than the above five issues. If the profession of law will not be subjected to ridicule, I think counsel of the type holding himself out as representing the cross-appellant in this matter will do well to seek the assistance of able and well learned senior members of the Bar (as they are legion in Nigeria) to always help in vetting whatever processes he prepares before filing same in the Registry of any court.”
I strongly recommend Justice Aderemi’s admonishment cited in Obosi v. NIPOST & ors (supra) to counsel in this case. This is more so as briefs, like pleadings and every other document prepared for filing in court are serious and solemn documents. They require great industry, great concentration and great care in their preparation, vetting and proof-reading before they are filed in court. A brief or pleading which is replete with grammatical errors is irksome to the reader and annoying to the judge. See Coker v. Adetayo (1992) LPELR-15369 (CA); (1992) 6 NWLR (pt 249); Fumudoh & anor v. Aboro & anor (1991) 9 NWLR (pt 214) 210 at 225 and Otoki v. Alakija (2012) LPELR-7994 (CA).
Learned counsel for the defendant by way of a preliminary objection urged this court to strike out this suit on the following grounds:
The claimant/Respondent has no cause of action against the defendant/Applicant as the claimant/Respondent was still in the employment of Interworld Products Nigeria Limited when the accident occurred on the 28th day of October, 2013 and as such the defendant/Applicant being a separate and distinct personality from Interworld Products Nigeria Limited is not the proper party to be sued by the claimant/Respondent.
That the Honourable Court lacks the requisite jurisdiction to adjudicate on this matter as the claimant/Respondent did not fulfil the conditions precedent as provided by section 6 of the Employee’s Compensation Act, 2010 before instituting this matter before this Honourable Court.
In amplification, G.O. Ogefere, Esquire, of counsel for the defendant/applicant submitted that the defendant/applicant is not the proper party to be sued as the defendant in this suit but Interworld Products Nigeria Limited; that defendant/applicant is a separate and distinct legal personality from Interworld Products Nigeria Limited and cannot be made to bear any purported liabilities of Interworld Products Nigeria Limited; that the defendant/applicant did not at any time purchase the assets and liabilities of Interworld Products Nigeria Limited; that the defendant/applicant was not privy to the contract of employment between Interworld Products Nigeria Limited and the claimant/respondent. Reliance was placed on Basinco Motors Ltd v. Woermann-Line (supra); Nissan (Nig) Ltd v. Yaganathan (supra); Osigwe v. PSPLS Management Consortium Ltd (supra) and Bello v. INEC & 2 ors (supra). The defendant/applicant submitted further that the claimant/respondent did not fulfill the condition precedent laid down by the Employee’s Compensation Act, 2010 particularly section 6 and 55 thereof; that for an employee to claim under the Act, an application for compensation must be made to the Board within one year of the occurrence of the accident that resulted in the disability claimed or within three years for special circumstances; that the Board would then give its decisions on the said application and such decisions can be appealed to the Board itself for a review of its decision; that it is only after the Board has reviewed its decision and a party is aggrieved by the decision of the appeal made to the Board that an appeal shall lie to the National Industrial Court; that failure of the claimant/respondent to follow the laid down procedure has robbed this court of the jurisdiction to handle this suit.
Learned counsel to the claimant/respondent argued that by Exhibits A,B and D, the defendant is the proper party to this suit; that Interworld Products Nigeria Limited is the same persons with the defendant; that they have the same directors which was clearly inserted at the foot page of the Exhibits, that they have the same address and still maintain the same Administrative Manager, in the person of Mr. Olayinka Oladapo, who is the maker of both Exhibits (A and B) including Exhibits C and D. Reliance was placed on Green v. Green (supra). The claimant/respondent argued further that by his solicitors two (2) correspondences to the defendant/applicant dated 23rd May, 2016 and 14th June, 2016 which were respectively responded to by the defendant’s/applicant’s solicitors in their letters dated 31st May, 2016 and 27th June, 2016, the claimant complied with the required provisions of section 6 and 55 of the Employee’s Compensation Act, 2010 and thereby activated the jurisdiction of this Honourable Court. Reliance was placed on Madukolu v. Nkemdilim (supra).
It is settled that for an action to be proper before a court or tribunal, one of the cardinal or principal conditions is that there must be proper parties in the suit. No action can be sustained by or against a party other than a natural person or persons unless such a party has been authorised by a statute either expressly or impliedly. See Bagwai v. anor v. Yusif Goda & 7 ors (2010) LPELR-3842 (CA); (2011) 7 NWLR 28. It follows that where proper parties are not before the court, such an action is incompetent and may be struck out. See NFCA v. Lalako (2013) FWLR (pt 144) 482. The consequences of not ascertaining who the proper parties were in court means the court is without jurisdiction to adjudicate. See Kanu & anor v. Obeta & ors (2015) LPELR-24432 (CA); Amodu v. Ajobo (1995) 7 NWLR (pt 406) 170; and Onwunalor v. Osademo (1991) 1 All NLR (pt 1) 14. It is a rule that persons against whom complaints are made in an action must be parties to the suit. See Uyo Local Government v. Idito Fisher Nig. Ltd (2011) LPELR (CA). It is therefore very important to the plaintiff that necessary parties ought to be included as parties for the successful conclusion of an action. See also Mobil Oil Plc v. Drexel Energy and Natural Resources Ltd & ors (2003) LPELR-7266 (CA), Green v. Green (supra); and Awoniyi v. AMORC (2000) 10 NWLR (pt676) 522; (2000) 6 SC (pt 1) 107. In order to determine whether a party is a proper defendant in an action or a suit, all the court needs to do is to examine the claim of the plaintiff before the court. In other words, it is the plaintiff’s claim that gives him the right to initiate the action or to seek to join a defendant. See Eco Bank Nigeria Plc v. Michael C. Metu & ors (2012) LPELR-20846 (CA); Bello v. INEC (2010) 8 NWLR (pt 1196) 342 and In Re: Yar’Adua (2011) 7 NWLR (pt. 1277) 567.
In the statement of facts establishing the cause of action, the claimant stated in paragraph 1 that she was a Sales Representative under the employment with the defunct Interworld Products Nigerian (sic) Limited, which went under and its assets and liabilities acquired by the defendant (Global Appliances Nigeria Limited); that she was employed by the defendant vide an offer of contract appointment dated 21st October, 2013 (Paragraph 3); that on the 28th October in the course of her employment, she had an accident at Nkwelle-Ezunaka Junction along Ontisha-Awka-Enugu Expressway while in the defendant’s company vehicle on her way to supply the company’s products at Shop-Rite (sic), Enugu resulting to (sic) injuries and fractures (sic) to the claimant and the driver-paragraph 4 of the claimant’s statement of facts. The list of 4 document (sic) pleaded and accompanying the claimant’s complaint include the defendant’s offer of contract appointment to the claimant dated 21st October, 2013. Item 1 of the terms and conditions of the offer letter states that the claimant’s employment shall be for a term of 1 (one) year commencing from 1st November, 2013. So, as at 28th October, 2013 when the claimant had an accident she was still a Sales Representative under the employment with the defunct Interworld Products Nigerian (sic) Limited as stated in paragraph 1 of her statement on oath; and I so find and hold. Furthermore, the Form of Acceptance-claim Number: 03.07-661-between Reynolds Constructions Company Nigeria Limited and Interworld Products Nig. Ltd dated 31st October, 2014 in which Interworld Products Nig. Ltd agreed to receive from Reynolds Construction Company Nig. Ltd the sum of N919, 300.00 in full satisfaction and liquidation of all claims of whatever nature arising directly or indirectly out of the accident in which the claimant and driver were involved was endorsed by the claimant. The argument of the claimant that Interworld Products Nigeria Limited went under and its assets and liabilities were acquired by the defendant herein is not supported by any documentary evidence. Merely stating so in the claimant’s statement of facts establishing the cause of action and the claimant’s statement on oath without more does not shift the burden of proof on the defendant. In Afolabi & ors v. Western Steel Works Ltd & ors (2012) LPELR-9340 (SC), the Apex Court per Rhodes-Vivour, J.S.C. held that:
“The acquisition of shares in companies and take-over of one company by another are matters regulated by Companies and Allied Matters Act. The transfer of shares or allotment of shares on a limited liability company must be registered and appropriate papers filed. It is not just a question of removing one company’s sign-board and replacing it with another. It was therefore to be expected that documents from the Corporate Affairs Commission would be placed before the lower court to enable it determine whether or not the 1st defendant company had been acquired by the appellant.” And with that, the Court of Appeal held that the 3rd respondent had not acquired the 1st respondent. I agree with the Court of Appeal. The purchaser of a company buys its assets and liabilities.”
Flowing from the above, it is my candid view that the legal burden of proof that the defendant in the instant suit acquired or bought Interworld Products Nigeria Limited has not been discharged by the claimant; and I so hold.
The defendant admitted paragraph 1 of the statement of claim only to the extent that the claimant was Sales Representative under the employment of the defunct Interworld Products Nigeria Limited but was later employed by the claimant (sic) and that the claimant (sic) never in any way or manner acquired the assets and liabilities of the defunct Interworld Products Nigeria Limited. Documentary evidence before the court explicitly indicates that the claimant was later employed by the defendant herein; and so the averments of the defendant in paragraph 2 of its statement of defence dated 7th October, 2016 and filed on 11th October, 2016 could not, by my reckoning, have been that: “the claimant was a Sales Representative under the employment of the defunct Interworld Products Nigeria Limited but was later employed by the claimant (sic) and that the claimant (sic) never in any way or manner acquired the assets and liabilities of the defunct Interworld Products Nigeria Limited”; especially having regard to the claimant’s averment in paragraph 1 of her statement of facts establishing the cause of action and witness statement on oath. Be that as it may, the defendant averred in paragraph 10 of its statement of defence that during the hospitalization of the claimant, Interworld Products Nigeria Limited closed up business and the defendant took over the franchise of the Binatone Brand in Nigeria. By paragraph 3 of its statement of defence, the defendant denied purchasing the assets and liabilities of the defunct Interworld Products Nigeria Limited in any way or manner. The claimant has failed to prove that the defendant is privy to the contract of employment between the defunct Interworld Products Nigeria Limited and the claimant; and I so hold.
On who a proper party is in an action, the Court of Appeal in Ojo v. Ogbe (2007) LPELR-8315 CA; (2007) 9 NWLR (pt 1040) per Mukhtar, J.C.A. (as she then was, later CJN) held that:
“In the case of Fawehinmi v. N.B.A. (No. 1) & ors (1989) 2 NWLR (pt 105) 494 at page 550 the Supreme Court dealt with issue relating to proper parties to a case or suit. His Lordship, the Honourable Justice Oputa, JSC in his judgment quoted Black’s Law Dictionary, 5th Edition at page 1010 and stated thus: “A party to an action is a person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is brought whether in law or equity; and went further to elaborate that a party is either a plaintiff or defendant and whether natural or legal persons but all other who may be affected by the suit indirectly or consequently are persons interested and not parties.”
What determines whether an action is properly instituted is whether the parties named in the suit are necessary parties. Proper parties are those who, though not interested in the plaintiff’s claim are made parties for some good reasons. See Dapialong & ors v. Lalong & ors (2017) LPELR-12865 (CA) and Green v. Green (supra). By 28th October, 2013 when the accident leading to the filing of this action arose, “the claimant was a Sales Representative under the employment with Interworld Products Nigerian (sic) Limited.” In my candid view, the claimant has not proved that the defendant herein is a proper party to be sued as a defendant in this action as the claimant has not established a cause of action against the defendant or that for ‘some good reasons’ the defendant should be made a party; and I so find and hold.
Regarding Issue Two, whether or not this Honourable Court has requisite jurisdiction to adjudicate on this matter, the defendant contended that for an employee to claim under the Employee’s Compensation Act, 2010, an application for compensation must be made to the Nigerian Social Insurance Trust Fund Management Board within one year of the occurrence of the accident that resulted in the disability claimed or within three years for special circumstances as stipulated in section 6 of the Act; that the Board would then give its decision on the said application and such decisions can be appealed to the Board itself for a review of its decision as stipulated in section 55 of the Act. In reaction to the defendant’s contention, the claimant submitted that the court has the competence to adjudicate in this matter wherein the claimant has comply (sic) with the laid down procedure as provided in section 6 of the Employee’s Compensation act (sic) 2010 vide the Form of Acceptance endorsed by the claimant and Reynolds Construction Company (Nig) Ltd dated 13th October, 2014 and marked as Exhibit “C”; that the claimant applied to the Board to pay all medical expenses sometimes in April, 2016; and that the defendant made a paltry payment of N600,000.00 leaving a balance of N747,410.00 unpaid till date after the claimant turned in the hospital receipts of claimant’s medical expenses to the defendant; that all of this is in compliance with section 55 of the Employee’s Compensation act (sic) 2010.
On whether failure to fulfil a condition precedent is a fundamental issue in a case or mere issue of technicality, the Court of Appeal per Iyizoba, J.C.A. in Virgin Nigeria Airways Limited v. John Roijien (2013) LPELR-22044 (CA) held that:
“Failure to fulfil a condition precedent is so fundamental to a case that it cannot be dismissed as a mere issue of technicality. The Supreme Court made this point per Aderemi, JSC in Akpaji v. Udemba (2009) 6 NWLR (pt 1138) 545 at 575-576 E-A:- “It is true that all courts must strive to do substantial justice in all cases before them; they must jettison technicalities and not allow same to stand in their way to dispensing justice. Section 16 of the Court of Appeal Act supra and section 22 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria 1990 empower the two Appellate Courts to do substantial justice in all matters before them. But if the statute says that there will be no jurisdiction to entertain a claim or a counter-claim, as in the instant case, until the filing fee is paid, until that event-the payment of filing fee occurred, the trial court would have no jurisdiction to entertain it. The condition precedent must not only be fulfilled, it must be seen to be properly fulfilled. That is the righteousness of the matter.”
Where a condition precedent for doing an act has not been complied with, no subsequent act thereto can be regarded as valid… the non doing of such thing renders the subsequent act void. See Nyako v. Ardo (2013) LPELR-20848 (CA). The court is equally incompetent to determine the process. See Mainstreet Bank Registrars Ltd v. Promise (2016) LPELR-40572 (CA); Dee Nigerian Universal Bank Ltd & 72 ors v. Samba Petroleum Co. Ltd. (2016) 12 NWLR (pt 993) 98 and Adegbenro & anor v. Akintilo & ors (2009) LPELR-4423 (CA). You cannot put something on nothing and expect it to stand. In any case, the claimant having made her bed, must have to lie on it. You cannot eat your cake and still have it. The transaction between the claimant (on behalf of Interworld Products Nig. Ltd.) and Reynolds Construction Company Nig. Ltd, in my humble view, does not reflect the claimant’s obligations under the Employee’s Compensation Act, 2010 but rather tantamounts to a repudiation or renunciation of her claim, especially Reliefs (a) and (b) before the court; and I so hold.
Having resolved Issues 1 and 2 in favour of the defendant and against the claimant in the defendant’s preliminary objection, it is my determination that the court cannot proceed to consider the substantive suit on its merits since the court is no longer seised of the jurisdiction to adjudicate on this matter. Doing so consequently becomes an academic exercise and courts are not allowed to compete with academic institutions in the resolution of hypothetical questions. See Kubor & anor v. Dickson & ors (2012) LPELR-9817 (SC). This suit is accordingly struck out.
Judgment is entered accordingly. I make no order as to costs.
Hon. Justice John I. Targema, Ph.D
Judge
