MR. VICTOR C. ENYIDEDE VS ROCHE CONSTRUCTION NIGERIA LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: WEDNESDAY 12^TH JUNE 2018

SUIT NO. NICN/OW/10/2018

BETWEEN:

VICTOR C. ENYIDEDE

CLAIMANT/RESPONDENT

AND

ROCHE CONSTRUCTION NIGERIA LTD

DEFENDANT/APPLICANT

APPEARANCES:

H.O. AYEGBENI FOR THE DEFENDANT/APPLICANT.
PATRICK EKEANYANWU FOR THE CLAIMANT/RESPONDENTS.

RULING/FINAL DECISION

INTRODUCTION

This suit was commenced by way of General Form of Complaint on the 5^th March 2018. It was accompanied with the Statement of Facts; List of Witnesses; Claimant’s Witness Statement on Oath; and the documents relied on. The reliefs claimed in the Statement of Facts are as listed hereunder:

(1) The sum of €91,607 (ninety-one thousand, six hundred and seven Euros) being the Claimant’s earned but unpaid salary from the period 11/12/2015 – 28/2/2018 at the rate of €2,500 per month.

(2) An order directing the Defendant to pay the Claimant his salary at the rate of €2,500 at the end of every month subsequently, until the suit is determined.

(3) 10% interest per annum on the judgment debt from the date of judgment until the judgment debt is liquidated.

In realization of the above, the claimant brought a Motion on Notice for summary judgment under Order 16, Rule 1 of the National Industrial Court [Civil Procedure] Rules 2017. The motion on notice was supported with an affidavit verifying the motion for summary judgment, a written address, and exhibits. The reliefs sought in the Motion on Notice for summary judgment are as listed hereunder:

AN ORDER entering summary judgment in favour of the Claimant/Applicant and against the Defendant/Respondent in the sum of Î91,607 (ninety-one thousand, six hundred and seven Euro), being earned but unpaid salaries due to the Claimant/Applicant from 11/12/2015 to 28/2/2018, as Group Internal Auditor in the employment of the Defendant/Respondent.
AND FOR SUCH FURTHER ORDER as the honorable court may deem fit to make in the circumstance.

Against the above, the defendant/respondent brought Notice of Preliminary Objection [NPO] dated 15^th March 2018 and filed 16^th March 2018. The grounds on which the NPO was brought are as listed underneath:

There is no master/servant relationship between the Claimant/Respondent and the Defendant/Applicant.
The Claimant/Respondent is not in the employment of the Defendant/Applicant having been terminated by the Defendant/Applicant on 27/02/2013.
The judgment of Court in suit No. NICN/EN/105/2013 on which the Claimant/Respondent is hinging this instant suit is currently on appeal at the Supreme Court in SC. No. 530/2017.
There is no seal on the complaint together with the accompanying processes dated 01/03/2018 and filed on 05/03/2018.
The indefinite suspension of the Claimant/Respondent by the Defendant/Applicant amounts to termination of the employment of the Claimant/Respondent.
The instant suit is an abuse of the Court process.

This NPO was supported with an affidavit and an undated written address; both were filed 16^th March 2018. In reaction to the NPO, the claimant/respondent filed a Counter-Affidavit on the 26^th March 2018. This Counter-Affidavit was accompanied with a written address dated 16^th March 2018. The defendant/applicant filed a Further and Better Affidavit on 30^th April 2018 in support of the NPO. This was accompanied with Reply on Points of Law dated 26^th April 2018 but filed 30^th April 2018.

On the 24^th May 2018 the NPO came up for hearing. On this date, H.O. AYEGBENI, of counsel to the defendant/applicant applied and the Further and Better Affidavit together with the Reply on Points of Law were deemed as properly filed and served. Thereafter, H.O. AYEGBENI proceeded to the NPO. Counsel relied on the affidavits filed in respect of the NPO. Counsel also adopted the written address filed in support of the NPO and the Reply on Points of law. In adumbration, the issue of stamp and seal of the NBA was raised. The Court then directed counsel to the parties to address it on the duration that each payment for stamp and seal covers and beginning and end of a legal year: whether it runs from January to December or cuts across two different years.

H.O. AYEGBENI, of counsel to the defendant/applicant argued that the evidence of payment is a temporary receipt issued pending the NBA when the stamp and seal is issued to counsel; and that, the evidence of payment in issue was made on 03/05/17. Counsel submitted that this evidence of payment dated 03/05/17 must end in 2017 and does not spill to the anniversary in 2018. Counsel submitted that the said evidence of payment is therefor invalid and could not avail a process filed 5^th March 2018. On the contrary, counsel to the claimant/respondent: PATRICK EKEANYANWU argued that the life span of the seal runs from 1^st of April of the year of issue to 31^st March of the subsequent year. PATRICK EKEANYANWU argued further that the process in issue was filed 5^th March 2018 long before the stamp was to expire. Counsel stated that lawyers are faced with the challenge of having the stamp and seals issued to them after payment and that he did not receive at all for the payment in issue. Counsel argued that the essence of stamp and seal is to authenticate the genuineness of a person franking a process and holding himself out as legal practitioner. Counsel cited Yaki v. Bagudu (2015) LPELR-25721 (SC).

Thereafter, counsel to the claimant/respondent: PATRICK EKEANYAWU relied on the Counter-Affidavit filed against the NPO on 26^th March 2018 and adopted the written address filed against the NPO on 26^th March 2018. Counsel urged the Court to dismiss the NPO, as the reliefs being sought now are different from the ones sought in the previous suit. Thereafter, the case was adjourned to 12^th June 2018 for ruling.

Having got to this stage, the next thing is to summarize the addresses of counsel to the parties. I start with that of the counsel to the defendant/applicant in support of the NPO.

ADDRESSES OF COUNSEL TO THE PARTIES

Address Of Counsel To The Defendant/Applicant

This address was settled by A.I. EKEH, ESQ. The learned counsel formulated a lone issue, to wit: “Whether this Honourable Court lacks jurisdiction to entertain this suit.” In arguing this lone issue, the learned A.I. EKEH submitted that jurisdiction is the bedrock of adjudication and cited Musaconi Ltd v. Aspinal (2013) LPELR-20745 (SC) 28-29, Paras. E-A. Counsel argued that this Court lacks jurisdiction to entertain this suit because there is no servant/master relationship between the parties since the claimant had ceased to be in the employment of the defendant since 27^th February 2013 when he was terminated by being placed on indefinite suspension. The learned counsel also argued that the judgment of this Court in Suit No. NICN/EN/105/2013 did not impose the claimant on the unwilling defendant and that the Court of Appeal in Suit No. CA/OW/58/2015 delivered 22/05/2017 did not also impose the claimant on the defendant as its employee.

Counsel also argued that this suit, which is hinged on the judgment of this Court in Suit No. NICN/EN/105/2015, which is currently on appeal at the Supreme Court in SC No. 530/2017 and that the instant suit, is therefore grossly incompetent. Counsel argued further that the parties in this suit and Suit No. NICN/EN/105/2013 are the same and that the pleadings in both suits are the same. Counsel argued that this suit constitutes an abuse of the process of court because the appeal on Suit No. NICN/EN/105/2013 is a continuation of the original suit; hence this suit that is instituted during the pendency of the appeal is therefore an abuse of the process of this Court. Counsel cited Ogunsanya v. Akande (2010) LPELR-4696 (CA) 10, paras. C-E on abuse of court’s process; and Otti & Anor. v. Ogah & Ors. (2016) LPELR-40846 (CA) 38, paras. C-D on appeal being the continuation of the original suit. Counsel subsequently argued that there is no NBA seal on the compliant by which this suit was commenced; and that as such, this suit is grossly incompetent.

Counsel urged the Court to strike out this suit. I shall now move to the written address of the claimant/respondent against the NPO.

Address of Counsel to the Claimant/Respondent Against the NPO

This written address was franked by PATRICK O. EKEANYANWU. The learned EKEANYANWU submitted a lone issue for the determination of the NPO, to wit: “Whether the National Industrial Court of Nigeria has jurisdiction to entertain Suit No. NICN/OW/10/2018.” Counsel argued that there is no valid pending appeal at the Supreme Court by virtue of Coca Cola v. Akinsanya [supra] and the decision of this Court in Suit No. NICN/OW/3M/2017, to the effect that there is no appeal against the civil jurisdiction of this Court to the Supreme Court, and hence, the current appeal being referred to by counsel to the defendant/applicant is invalid and could not anchor the arguments based on it. Counsel argued that the consistent reliance on the appeal at the Supreme Court to frustrate proceedings at this Court is in actual fact an abuse of the process of court. Counsel argued that the defendant/applicant had not served the authentic record of appeal on the claimant/respondent, neither had it filed its brief of argument therein nor served the claimant with the motion for stay of execution dated 7/7/2017.

The learned counsel moved to the issue of suspension and termination and argued that this Court, per Anuwe J., had settled the issue in Suit No. NICN/EN/105/2013 by holding that suspension does not terminate employment. Counsel moved to the issue of stamp and seal and referred the Court to paragraph 7(a) and (b) of their Counter-Affidavit by which attention of the Court was drawn to the receipt of payment for the seal. Counsel argued that the attachment of the receipt satisfied the requirement of law on affixation of NBA seal. I shall now move to the Reply on Points of Law filed by the counsel to the defendant/applicant.

Reply on Points of Law by Counsel to the Defendant/Applicant

This Reply on Points of Law was settled by HENRY O. AYEGBENI, ESQ. Let me state at the outset that I shall only summarize what in my view amounts to reply on points of law and not re-argument. On the argument by counsel to the claimant/respondent that the exhibition of the payment receipt satisfied the requirement for affixation of the NBA Seal, the learned counsel to the defendant/applicant cited Adewale & Anor. v. Adeola & Ors. (2015) LPELR-25972 (CA) 20, paras. C-F; 19, paras. D-C.

As could be seen, I have carefully summarized the addresses of counsel to the parties. The next duty that logically follows is for me to proceed to give the decision of the Court on the NPO by applying law to the facts of the case.

DECISION OF THE COURT

Before given the decision of the Court on the NPO, let me state first that I have carefully digested all the processes connected with the NPO. References shall be made to any of the processes as occasions demand, especially the affidavits of the parties. In giving the decision of the Court, I adopt the issue formulated by the counsel to the claimant/applicant, but in a modified form, to wit: “Whether this Court has the jurisdiction to entertain this suit?” The jurisdiction of this Court to entertain this case has been attacked on two prongs: (1) that the suit amounts to an abuse of the Court’s process because it was filed while an appeal on the original suit of similar facts, reliefs and the same parties is pending at the Court of appeal; and (2) because there is no stamp and seal embossed as required by law on the initiating processes. The claimant/respondent countered these attacks by arguing that the purported appeal in question is an invalid appeal since appeal against the civil jurisdiction of this Court cannot go to the Supreme Court and that, since there is evidence of payment for the stamp and seal which was not issued, the Court should hold that the requirement for affixation of stamp and seal had been met since the purpose is to authenticate the genuineness of a counsel franking legal processes. I will take the question of stamp and seal first.

The learned counsel to the defendant/applicant cited Adewale & Anor. v. Adeola & Ors. [supra] to anchor his objection on the ground of failure to affix stamp and seal while the counsel to the claimant/respondent cited Yaki v. Bagudu [supra]. Now, the authority cited by the counsel to the defendant/applicant is from the Court of Appeal while that of the counsel to the claimant/respondent is from the Supreme Court. It follows that that of the Supreme Court is the state of the law at the moment. Besides, the Supreme Court impliedly overruled the Court of Appeal on this issue when it held, contrary to the Court of Appeal that, a document franked by a legal practitioner without affixing stamp and seal as required is not void ab initio but merely voidable as it could be regularized by subsequently affixing the stamp and seal. However, the facts of this case are different from those of the Supreme Court case cited. The Supreme Court’s case dealt with a situation where the stamp and seal were not affixed and there was no evidence of payment for the stamp and seal and no receipt of payment was attached. It also dealt with the situation where there was no application either oral or written to regularize the process. The issue here is that the counsel to the claimant/respondent deposed in paragraph 7 of the Counter-Affidavit stating that the stamp and seal was affixed as required on the initiating processes and also exhibited in the Counter Affidavit the receipt for payment for the stamp and seal.

Though, the counsel to the claimant/respondent deposed to the fact that the NBA seal was attached. I could not find such attached. What I found was photocopy of receipt for payment for the stamp and seal in 2017. Counsel to the claimant/respondent has stated in his address that he was not issued the stamp and seal throughout the period covered by the receipt attached. This piece of fact is not deposed to. But I do not think this amounts to ipse dixit of counsel since it is counsel himself, which is directly seised of the facts in issue and in a position to give evidence on the issue. I only think it would have been neater to depose to this fact. This sort of evidence from the Bar by counsel is cognizable before the Court since the Supreme Court held in Yaki v. Bagudu [supra] p. 14 at last the paragraph [paragraph number not given] that oral application could be made for regularization. So, the real issue here is: what is the effect of providing evidence of payment for the stamp and seal but without affixing the stamp and seal on the ground that they were not issued by the NBA? That is the basis on which this issue was fought and the basis on which it must be resolved.

In my view, to void the initiating processes on the grounds of non-affixation of stamp and seal in the presence of evidence of payment for the stamp and seal attached to the initiating processes at the time of filing would amount to punishing the counsel and his client for doing no wrong or commanding the counsel to produce what he had paid for, had no means of producing and which were not issued to him by the body in charge. It would amount to commanding a person to do what is totally impossible. It is not the argument here that the person who franked the processes in issue is not a legal practitioner. If it were, different consideration would have arisen. To insist in the circumstance would amount, in my view, to placing undue reliance on technicality. It would at the same time amount to making the NBA to benefit from its own wrong by failing to fulfill its own part of the contract – see Oceanic Bank International Plc v. Broken Agro Allied Industrial Limited (2008) LPELR-4671 (CA) 36, paras. C-E, where it was held: “The law will not allow any person to reap any benefit from his own wrongful act. To allow such is manifestly unjust and will portray the law as an instrument of injustice.” It might also create the dangerous situation whereby the stamp and seal, which were designed to sanitize legal practice, would achieve its direct opposite by being hoarded and monopolized by few to prevent the unconnected and non-influential counsel from practicing law. To obviate these dangerous possibilities, the only rational way is to deem evidence of payment for the stamp and seal as sufficiently satisfying the essence of affixing stamp and seal to frank legal processes where there is evidence that they were not issued after payment for same; and where there is no contest on the genuineness of the legal practitioner involved.

In now move to another aspect of the issue. This relates to the period covered by the stamp and seal issued in a particular year. The counsel to the defendant/applicant had submitted that such receipt only covers a single year from January to December while the counsel to the claimant/respondent submitted that it runs from 1^st of April of the year of issue to 31^st March of the subsequent year. I have examined the seal affixed by counsel to the defendant/applicant on the Memorandum of Appearance at page 100 of file and observed that it was written clearly therein that the seal is valid till March 2018. This settles the argument in favour of the counsel to the claimant/respondent and shows clearly that seal transverses parts of two different years to make a year, contrary to the argument of counsel to the defendant/applicant. This suit was filed on 5^th March 2018 hence; it was filed before the expiration of the stamp and seal for 2017/2018 stamp-and-seal year, which expires at the end of March 2018. It was thus filed within the life span of the payment made in May 2017. In view of the forgoing, I hold that the receipt for payment attached satisfied the requirement for affixing stamp and seal and that the initiating processes are valid and subsisting.

I now move to the question of multiplicity of suits on the same subject matter. The counsel to the claimant/respondent has not denied that this present suit arose from the same facts as the one on appeal. Counsel has not also contested the facts that the same parties are involved in the suit and that judgment had been given in the first of the two suits. However, the claimant/respondent brings this suit on the basis that this Court held that he is still a staff of the defendant and as such, he is entitled to his salaries till date. The arguments have dovetailed on the issue of this suit being bad on the ground that the original suit is still on appeal, meaning that, two different suits are being pursued in respect of the same parties and facts. I think both counsel missed the point by dissipating energies on the issue of the propriety or otherwise of the appeal in issue and the effect on the instant suit.

The issue of whether or not this suit constitutes an abuse of the process of the Court and thereby negatively impacting the jurisdiction of the Court should be located strictly on basis of whether another suit could be instituted to enforce the judgment of a court. This is borne out by the facts presented and obliquely argued by saying the suit constitutes an abuse of the process of the Court. Even if not argued, it is an issue which could be raised suo motu by the Court and decided without taking arguments from counsel: Abuse of court’s process is an issue that touches the jurisdiction of the Court and ought to be raised and decided by the Court suo motu – see Shittu v. Kwara State Polytechnic, Ilorin & Ors (2014) LPELR – 23820 (CA) 27-28, paras. F-A; and Omokuwajo v. FRN (2013) LPELR-20184 (SC) 38, paras. A-C. Claimant had deposed in paragraph 17 of the affidavit in support of the motion for summary judgment that the relief granted in the original suit: NICN/EN/105/2013 is “It is declared that the Claimant is still an employee of the 1^st Defendant.” This is the basis of instituting another suit to claim for post-judgment salaries till date. Assuming it is true that the Court held that the claimant remained an employee of the defendant in perpetuity, is it by bringing another suit that this declaration would be enforced? I think the answer is provided in Odiong v. Offiong (2011) LPELR-4679 (CA) 9-10, paras. G-A, where the Court of Appeal said:

“I wish to observe that enforcement of a judgment obtained from a court such as in this case is not carried out by initiating another proceedings in another court unless the judgment so obtained has been set aside as a nullity. If the judgment is not set aside, the subsequent proceedings are a nullity and abuse of the process of the court. What the respondent ought to have done was to apply for a writ of execution to enforce the judgment he got in Suit No. 64/2004.”

What the claimant/respondent herein ought to have done was to initiate processes for execution of the judgment of the Court with respect to purportedly being declared a perpetual staff of the defendant and not to institute another action on facts that are similar to the ones canvassed in the original suit on appeal. But let me state that the Court did not even at any time declare the claimant to be a perpetual staff of the defendant. A close study of the reliefs claimed and the reliefs granted by the Court would reveal this. The reliefs claimed as set out at the first page of the judgment [Exhibit A1 of the Affidavit in support of motion for summary Judgment] and are reproduced as follows:

(1) A Declaration that he is an employee of the 1^st Defendant.

(2) The sum of €7,500 (Seven Thousand, Five Hundred Euros) or its equivalent in naira at the Central Bank of Nigeria’s rate at the date of judgment, being his salary for January and March 2013.

(3) An order directing the 1^st Defendant to pay his salary at the end of every month until the suit is determined.

(4) 10% interest on the judgment debt from the date of judgment and until the judgment is liquidated.

(5) N800,000.00 as cost of this litigation. [Underlined supplied for emphasis]

The reliefs granted at the last page of the judgment are:

It is declared that the claimant is still an employee of the 1^st defendant.
The defendants are ordered to pay the claimant his salaries from the month of January 2013 till the date of this judgment at the sum of 2,500 Euros (or its Naira equivalent at the official Central Bank of Nigeria rate) per month.
The claimant’s cumulative salaries as ordered to be paid to him shall be paid to him by the defendants within 30 days of the date of this judgment after which it shall attract interest at the rate of 10% per annum until it is finally paid him. [Underlining supplied for emphasis]

Relief 3 of the claimant in the original suit taken with relief 2 as granted by the Court bears out the true meaning of relief 1 as granted by the Court. It simply meant that the claimant was declared as remaining a staff of the defendant until the judgment in the original suit and not in perpetuity as being claimed by the claimant/respondent herein. The Court could not have granted a substantive relief not claimed or canvassed in the suit or borne out by the facts of the suit. And if the claimant made a mistake of not asking that he be declared perpetual staff of the defendant, he cannot cure this by instituting another suit on the same set of facts and parties. What he asked for, the Court has granted. There must be an end to litigation.

Assuming too that the issue of the appeal in question being a nullity is germane to this action, I still hold that it would not avail the claimant/respondent because, the claimant/respondent’s counsel simply quoted the portion of the ruling delivered by O.O. Arowosegbe J on 9/3/2018 in Suit No. NICN/OW/3M/2017 [at p. 282-295 of the file] favourable to him out of context leaving out the unfavourable parts. Counsel ought to have exhibited the said judgment but failed to do so. Nevertheless, I take judicial notice of it being a ruling emanating from me. Excerpts from pages 13 and 14 of the said ruling go thus:

“Having come to this stage, what is the necessary order to make? In deciding this, one must pay due cognizance and obeisance to the Supreme Court. And one must be guided by fairness to all the parties involved. These two considerations must be made to bear on the fact that the purported appeal to the Supreme Court is has been adjudged to be a nullity. But the fact remains, that it is not unknown that the Supreme Court could be persuaded to overrule its previous decision. The faintest possibility of this leaves a lingering doubt as to the status of the appeal at the Supreme Court. As it appears that the Supreme Court decision cited as having held that there is no right of appeal on civil jurisdiction of the NIC to the Supreme, emanated from an action in personam, though, the decision itself appears to be one in rem, meaning that, each subsequent party that desires to take advantage of it might need to approach the Supreme Court to have the same pronouncement in its favour, unlike an action in rem.

Respect to the Supreme Court therefore means it must be allowed to give its decision since the appeal has been entered in its dockets. This bring to bear the need to have in place, a sieving method by which the Supreme Court could summarily determine which appeal it would or not take. This would have taken care of this type of case before it was entered in the docket of the Supreme Court thus, saving the time and cost on the parts of all concerned.”

Arising from the above too, it is clear that the argument canvassed on the basis of nullity of the appeal at the Supreme Court by counsel to the claimant/respondent cannot avail this suit. Even if the appeal were a nullity as canvassed, it is still not a licence to commence another suit merely to enforce the judgment delivered in the earlier suit. In whatever way one looks at it, the instant suit is an abuse of the Court’s process, and hence, the Court lacks the jurisdiction to entertain it. It is liable to be dismissed – see Chevron Nigeria Limited v. Napoleon A.O.A. Aguma & Ors. (2005) LPELR-12472 (CA) 22, paras. D-G. In accordance with the foregoing authority, I hereby dismiss this suit for constituting abuse of the process of this Court.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

OWERRI DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA