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National Industrial Court

MR. FELIX ADARIKU -VS- TOTAL F & P NIGERIA LIMITED & 4 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E.N. AGBAKOBA

 

 

DATED 7TH FEBRUARY, 2017                                         SUIT N0: NICN/ABJ/110/2016

 

BETWEEN

  1. FELIX ADARIKU CLAIMANT

(SUING FOR AND ON BEHALF OF                                              

ALL SERVICE CONTRACT PERSONNEL)

 

AND

  1. TOTAL F & P NIGERIA LIMITED
  2. EASTBAY NIGERIA LIMITED
  3. GOBIN SECURITY LIMITEDDEFENDANTS
  4. FABOM VENTURES NIGERIA LIMITED
  5. LUCK GUARDS LIMITED

 

REPRESENTATION

BUNMI AIMIOLA with MOSES USMAN for the Claimant/Respondent

INAM WILSON with SOLOMON BABAJIDE for the Defendant/Applicant

R U L I N G

The Claimant commenced this action vide Amended Complaint filed on 29th June, 2016 accompanied by the Statement of Facts, Witness Statement on Oath, List of Witnesses and List of Documents, claiming against the defendants jointly and severally for the following reliefs:

  1.  A DECLARATION that the deduction and in extension, the non-payment of the daily rates by the Defendant(s) jointly and severally for all categories of Service Contract Personnel as contained in the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013 is unlawful, illegal, and a gross violation of breach of contract of employment by the Defendant(s) jointly and severally.

 

  1.  A DECLARATION that the unilateral downward review of the daily rates for Service Contract Personnel as contained in the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013 by the Defendant(s) jointly and severally without the consent of all the Service Contract Personnel from 23/10/2012 to the date all the Service Contract Personnel were purportedly disengaged by the Defendant(s) jointly and severally is unlawful and illegal to that extent of such unilateral downward review of the daily rates.

 

  1.  A DECLARATION that the payment of the monthly salary by the Defendant(s) jointly and severally which is far less than the approved daily rates for 22 days per month as contained in the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013 to all the purported disengaged Service Contract Personnel is unlawful, illegal and fraudulent.

 

  1. A DECLARATION that non-compliance to issue a valid letter of termination by the Defendant(s) jointly and severally to all the disengaged Service Contract Personnel is unlawful to that extent.

 

  1.  A DECLARATION that the withholding and non-payment of the Claimant(s) arrears of balance on salary is unlawful, a breach of the contract of employment and an act of irregularity by the Defendants jointly and severally.

 

  1.  AN OREDR nullifying all the unlawful and illegal steps taken by the Defendant(s) jointly and severally for unlawful deduction and non-payment of the daily rates for Service Contract Personnel as contained in the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013.

 

  1.  AN ORDER mandating the Defendant(s) jointly and severally to pay to all the Service Contract Personnel the arrears of the unlawful deduction on the daily rates for 22 days per month from 23/10/2012 to date as balance of salaries/daily rates been and being unlawful and illegally owed to all the disengaged Service Contract Personnel by the Defendant(s) jointly and severally.

 

  1.  AN ORDER mandating the Defendant(s) jointly and severally to immediately calculate the daily rates for 22 days per month as contained in the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013 for each category of Service Contract Personnel from 23/10/2012 to date in accordance with their individual years of experience and their academic qualification and pay the said calculated rates within 22 days after judgment of this Honourable Court.

 

  1.  AN ORDER mandating the Defendant(s) jointly and severally to comply with global best practices to issue a valid letter of termination or disengagement of services to all the affected Service Contract Personnel.

 

  1.  AN ORDER mandating the Defendant(s) jointly and severally to pay to all the disengaged Service Contract Personnel their severance package in accordance with the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013.

ALTERNATIVELY to Prayer 8 above, an order mandating the Defendant(s) jointly and severally to pay to the Claimant(s) individually the sum specifically accruable to individual Service Contract Personnel on the basis of minimum and maximum years of experience in TOTAL cum educational qualification respectively the arrears of their salaries based on daily rate as provided for in the LOCAL TECHNICAL ASSISTANCE SERVICES GRID OF RATES FOR 2013 and all other entitlements from the month of November, 2012 till the date their employment is properly determined.

 

1st defendant filed a NOTICE OF PRELIMINARY OBJECTION on 15th November, 2016 and dated 17th November, 2016, supported by a 14 paragraph affidavit deposed to by Arnold Ushiado, praying the Court for AN ORDER of this Honourable Court dismissing and/or striking out this suit against the 1st Defendant/Applicant.

 

GROUNDS FOR THE OBJECTION

  1. Claimant cannot bring this action in a representative capacity on behalf of the 257 disengaged employees as the contracts of employment of the Claimant and each the 257 disengaged employees are personal to each individual and there cannot exist a commonality of interest or grievance among the Claimant and the 257 disengaged employees to form a basis for a representative action.

 

  1. There is no privity of contract between the Claimant on record and the 257 disengaged employees he purports to represent as the claims in this suit relates to alleged breach (es) of the various individual contracts of employment between the Claimant and the 257 disengaged employees and either one of the 2nd to 6th Defendants/Respondents or other companies not named as parties in this suit who are their employers.

 

  1. In law, only a party to a contract of employment can sue or be sued in respect of the contract.

 

  1. There is no reasonable basis for making the Applicant a party to the suit. A fortiori, no reasonable cause of action has been disclosed against the Applicant.

 

  1. This Honourable Court lacks and cannot exercise jurisdiction over the 1st Defendant as it is not the employer of the Claimant or any of the 257 disengaged employees purportedly represented by the Claimant.

 

The Defendant/Applicant also filed a WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION DATED 17TH DAY OF OCTOBER, 2016, wherein the raised the following  ISSUES

  1. Whether the Claimants’ suit commenced as a representative action is not incompetent, there being no commonality of interest and grievance as between the Claimant on record and the people he purports to represent? (Absence of Commonality of Interest/Grievance Issue)

 

  1. Whether the Claimants’ suit is not incompetent as against the Applicant, the Claimants having not disclosed any cause of action against the Applicant? (Absence of Cause of Action Issue)

 

  1. Whether this Honourable Court lacks and cannot exercise jurisdiction over the 1st Defendant not being an employer of the Claimant or any of the 257 disengaged employees purportedly represented by the Claimant.

 

ON ISSUE 1

Whether the Claimants’ suit commenced as a representative action is not incompetent, there being no commonality of interest and grievance as between the Claimant on record and the people he purports to represent? (Absence of Commonality of Interest/Grievance Issue).

 

Learned Counsel to the Defendant/Applicant Inam Wilson Esq. submitted that commonality of interest and grievance have always been the fundamental precondition for commencing an action in a representative capacity. Of which in their absence, an action cannot be properly commenced nor competently maintained in a representative capacity. OFIA Vs. EJEM (2006) 11 NWLR (PT. 992) 652 @ 664 – 665, PARAS. G-A; OLATUNJI Vs. THE REGISTRAR OF CO-OPERATIVE SOCIETIES (1968) NMLR 393. It is the Defendant/Applicant’s counsel’s submission that our superior courts have repeatedly held that cases involving breaches of contracts of employment are not amenable to being brought or constituted in a representative capacity because of the inherent absence of a common right, interest and grievance between parties to the contracts and non-parties thereto. Reason being that the typical contract of employment is a personal or domestic contract and the interests of each of the parties is directly tied to his individual contract of employment with his employer. CO-OPERATIVE & COMMERCE BANK NIGERIA PLC V. ROSE (1998) 4 NWLR (PT. 544) 37 @ 46, PARAS. C-D; 50, PARAS. A-B; BOSSA V. JULIUS BERGER (2005) 15 NWLR (PT. 948) 409 @ 429-430, PARAS. H-A; P. 430, PARAS. C-D; ANIFOWOSHE V. WEMA BANK PLC. (2015) LPELR – 24811 (CA). He further argued that it is trite law that where an action is wrongly commenced or constituted as a representative action for want of common interest and grievance, such an action is incompetent and ought to be dismissed and/or struck out. H.K.S.F. Vs. AJIBAWO [2008] 7 NWLR (Pt. 1087) 511 at 526 paras C — D.

 

 

ON ISSUE 2

Whether the Claimants’ suit is not incompetent as against the Applicant, the Claimants having not disclosed any cause of action against the Applicant? (Absence of Cause of Action Issue).

 

Counsel to the Defendant/Applicant also submitted that a cause of action is the entire set of circumstances which give rise to an enforceable claim. It is in effect, the fact or combination of facts which give rise to a right to sue, consisting of two elements, namely:

 

  1. the wrongful act of the defendant which gives the claimant his cause of complaint; and

 

  1. the consequent damage. RICMO CONSTRUCION CO. LTD. V. VEEPEE INDUSTRIES LTD. (2005) 9 NWLR (PT. 929) 85 @ 95, PARAS. C-H; OJUWKU V. YAR’ADUA (2009) 12 NWLR (PT. 1154) 50 @ 132; ONUEKWUSI V. R.T.C.M.Z.C. (2011) 6 NWLR (PT. 1243) 341 @ 359-360; BELLO V. ATTORNEY-GENERAL, OYO STATE (1986) 5 NWLR (PT. 45) 828 @ 876, Karibi-Whyte, J.S.C.

 

Defendant/Applicant Counsel submitted that in determining whether or not a suit discloses a cause of action against a defendant, the court is bound to look at the Statement of Facts. ESEIGBE V. AGHOLOR (1990) 7 NWLR (PT. 161) 234 (which confirms this extant position of the law.

Contending that documents pleaded or attached to pleadings (statement of Facts or Statement of Defence) form part of the pleadings. SPDCN LTD. V. JOHN [2O11] 2 NWLR (PT. 1231) 236 AT 252, PARAS. F — H and IFEADI V. ATEDZE {19983 13 NWLR (PT. 581) 205 AT 225, PARAS. E — F.

He submitted further that a contract of employment just like every other contract), does not confer a right to sue or be sued on third parties or strangers, even though the contracts may be of some benefit to them. CHEMICAL AND ALLIED PRODUCT PLC V. VITAL INVESTMENTS LTD. (2006) 6 NWLR (PT. 976) 220; NWUBA V. OGBUCHI (2008) 2 NWLR (PT. 1072) 471 @ 473; OWODUNNI V. REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (PT. 675) 315; U.S.A. PLC V. JARGABA (2007) 11 NWLR (PT. 1045) 247 @ 266-267; ILESA L.P.A. V. OLAYIDE (1994) 5 NWLR (PT. 342) 91 @ 104, PARAS. D-G.

 

It is counsel’s contention that the terms of a contract of employment, whether statutory or under common law, is the bedrock on which an aggrieved employee must found his case. And where there is a written or documented contract of service as it is the case presently, the court will not look outside the terms stipulated or agreed therein in deciding the rights or obligations of the parties. RECTOR, KWARA STATE POLYTECHNIC V. ADEFILA (2007) 15 NWLR (PT. 1056) 42. Counsel to the Defendant/Applicant also submitted that where a suit fails to disclose any cause of action against a party, the court is obliged to dismiss and/or strike out the suit against the party. OJUKWU V. YAR’ADUA (2009) 12 NWLR (PT. 1154) 50; N.C.C. V. MTN (2008) 7 NWLR (PT. 1086) 229 @ 263, PARAS. B-C.

 

ON ISSUE 3

Whether this Honourable Court lacks and cannot exercise jurisdiction over the 1st Defendant not being an employer of the Claimant or any of the 257 disengaged employees purportedly represented by the Claimant.

Defendant/Applicant Counsel submitted that no matter how beautifully conducted, a proceeding and any finding and order made pursuant to it would amount to a nullity where the court proceeded without jurisdiction. EMEKA v. OKADIGBO (20123 18 NWLR (Pt. 1331) S.C.; MADIJKOLU v. NKEMDILIM (1962) 2 SCNLR 341.

 

The claimants in response filed their “CLAIMANTS WRITTEN ADDRESS IN OPPOSITION TO 1ST DEFENDANT/APPLICANT PRELIMINARY OBJECTION” dated and filed on 9th December, 2016.

 

With the following ISSUES for determination;

  1. Whether the Claimant on record can maintain this suit in a representative capacity on behalf of himself and the 257 claimants (the representative capacity issue).

 

  1. Whether the Claimants action discloses a cause of action against the 1st Defendant/Applicant to warrant its joinder (the cause of action issue).

 

ON ISSUE 1

Whether the Claimant on record can maintain this suit in a representative capacity on behalf of himself and the 257 claimants (the representative capacity issue).

 

Learned Counsel to the Claimant Respondent Bunmi I Aimola Esq. submitted that the position of law canvassed by Defendant / Respondent Counsel in their Issue I (absence of commonality of interest/grievance issue) was good law until the revolution in Nigerian Labour Law, that since the passing of the National Industrial Court Act, 2006, the National Industrial Court Rules, 2007, and the Third Alteration of the 1999 Constitution in 2011, the landscape of Labour Law has experienced a radical change.

 

Thus, what this means is that the host of pre—2011 cases cited by the 1st Defendant/Applicant no longer represent the position of the law. It follows therefore, that OFIA V EFEM, OLATUNJI V REGISTRAR OF CO—OP SOCIETIES, CO—OPERATIVE & COMMERCE BANK NIGERIA PLC V ROSE, BOSSA V JULIUS BERGER PLC, ANIFOWOSHE V WEMA BANK PLC, AND HKSF AJIBAWO (supra) all cited in support of the arguments on their Issue (i) are all inapposite to the issue before the Court. He argued that the only seeming exception being ANIFOWOSHE V WEMA BANK PLC (2015) LPELR – 24811(CA) which was decided by the Court of Appeal Lagos Division in June 2015 post the 2011 Alteration. He maintained that the National Industrial Court has decided on the basis of the above provisions of law that despite the general position of the law; on commonality of interest/grievance, the NIC is empowered under its enabling laws to depart from that position in the interest of the special jurisdiction conferred on it. OLUKAYODE V TIMBUKTU MEDIA LTD. (Unreported Ruling in Suit No: NIC/LA/25/2011 delivered on 25th January, 2012.  Cited in Aturu B., Law and Practice of the National Industrial Court, Hebron Publishing Co. Ltd, 2013, Pp. 218-219; RUNYI KANU &ORS V THE AG CROSS RIVER STATE (Unreported Ruling in NICN/CA/39/2012 delivered on 13/03/2013; also reported in Aturu B. (Supra) @ 219.

 

ON ISSUE 2

Whether the Claimants action discloses a cause of action against the 1st Defendant/Applicant to warrant its joinder (the cause of action issue).

 

Learned Counsel to the Claimant/ Respondent  in answering the question posed:

“Can Privity of Contract be considered at this Stage?”

Submitted that the arguments of the 1st Defendant/Applicant Counsel on privity of contract is an attempt to have a trial— before—trial by dragging the Court into substantive issue at an interlocutory stage. Furthermore, that the argument goes beyond the clear purport of the pleadings and throws up issues that can only be determined after evidence has been heard. This the law forbids. GOODHEAD V ANACHREE

On the 14th December 2016 parties adopted their written addresses and adumbrated their respective positions. The court after listeni

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