IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
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Suit No: NICN/LA/405/2016
Petitioner:
Total Support Securities Limited ANOR
And
Respondent:
Sabaco Limited ANOR
Date Delivered: 2017-07-05
Judge(s):
JUSTICE B. B. KANYIP
Rulings Delivered
REPRESENTATION
M. O. A. Olawepo, for the claimants.
O. O. Olajide, with T. H. Abe, for the defendants.
RULING
1. By a complaint and statement of facts filed on 17th June 2016, the claimants prayed jointly and severally against the
defendants for:
(1) The sum of N82,161,000.00 (Eighty-Two Million, One Hundred and Sixty-One Thousand Naira) being
N32,161,000.00 outstanding indebtedness accruing from the defendants to claimants for provision of security services
rendered by the claimants under the contract of service entered into by defendants with the claimants by virtue of which
the claimants were engaged as security agents under and by virtue of the contract constituted by the letter of
appointment dated 11th April, 2000 to that service, which the defendants had failed, refused and or neglected to pay
despite repeated demands for such payments, and N50,000,000.00 damages as compensation for all the harassments,
Police arrests, detentions and inconveniences the claimants had been subjected to on accounts of and in the course of
carrying their schedule of duties on the contract herein, and those further instigated by the defendants on account of
their efforts at unlawfully ejecting the claimants from the property he occupies of the defendants in relation to the
performance of his duties herein.
Particulars:
The claimants commenced the provision of security services to defendants from 12th April 2000 and continued same
until 31st July, 2010, and the unpaid indebtedness accruing to claimants for all these periods, which claimants claim, are
as follows:
(i) 12/4/2000 – 30/4/2000 = 19 days in the sum of = 61,000.00
(ii) May 2000 – December 2000 at N100,000 p/m x 8 months = 800,000.00
(iii) Jan 2001 – December 2001 at N100,000 p/m x 12 months = 1,200,000.00
(iv) Jan 2002 – December 2002 at N100,000 p/m x 12 months = 1,200,000.00
(v) Jan 2003 – December 2003 at N100,000 p/m x 12 months = 1,200,000.00
(vi) Jan 2004 – December 2004 at N100,000 p/m x 12 months = 1,200,000.00
(vii) Jan 2005 only at N100,000 p/m x 1 = 100,000.00
(viii) Feb 2005 – December 2005 at N400,000 p/m x 11 months = 4,400,000.00
(ix) Jan 2006 – December 2006 at N400,000 p/m x 12 months = 4,800,000.00
(x) Jan 2007 – December 2007 at N400,000 p/m x 12 months = 4,800,000.00
(xi) Jan 2008 – December 2008 at N400,000 p/m x 12 months = 4,800,000.00
(xii) Jan 2009 – December 2009 at N400,000 p/m x 12 months = 4,800,000.00
(xiii) Jan 2010 – July 2010 at N400,000 p/m x 7 months = 2,800,000.00
(xiv) General Damages = 50,000,000.00
Total N82,161,000.00
(2) The claimants also claims interest on the said outstanding indebted sum of N32,161,000.00 at the rate of 22% per
annum until judgment, and thereafter at the said rate of 22% per annum until final liquidation of the entire sum.
(3) A declaration that the occupation of the claimants in one of the duplexes the cause of this action herein being
brought about by the relationship between the defendants and the claimants, the claimants cannot be compelled to
vacate the premises until the defendants bring the entire relationship to a full and final determination by the payments
over to the claimants of all the outstanding owing by all the defendants, either individually, jointly or collectively, to the
claimants.
2. The defendants initially appeared through counsel but did not file any defence process. Trial accordingly commenced
with the 2nd claimant testifying as CW and adopting his deposition with the claimants’ exhibits tendered and marked as
Exhibits C1 to C28. It was at this point that the defendant filed their memorandum of appearance and defence processes
alongside a preliminary objection. The preliminary objection (supported by an affidavit, a written address and a further
and better affidavit) seeks the striking out of the names of the 2nd, 3rd and 4th defendants from this suit. The grounds
upon which the objection is based are:
(1) There is no contract of service or any other kind of contract between the claimants and defendants in this suit. But
assuming, but not conceding that there was a contract of service as the claimants allege, the alleged right to the reliefs
sought by the claimants does not exist against the 2nd, 3rd and 4th defendants as there is no master-servant between
the claimants and the 2nd, 3rd and 4th defendants.
(2) No cause of action is disclosed against the 2nd, 3rd and 4th defendants in this suit.
(3) It is in the interest of justice that the names of the 2nd, 3rd and 4th defendants be struck out as it would save them
time and resources defending a suit to which they should never have been joined as defendants.
(4) The 2nd, 3rd and 4th defendants are not necessary parties to this suit.
(5) The 2nd, 3rd and 4th defendants have no interest in this suit.
(6) It is in the interest of justice that this application be granted.
3. In reaction, the claimants filed a counter-affidavit and a written address.
4. The defendants submitted one issue for the determination of the Court, to wit: whether the Court ought not to strike
out the names of the 2nd, 3rd and 4th defendants in this suit. To the defendants, the claimants’ case is that they were
employed by the 1st defendant to provide security services and have not been paid for the services they purportedly
rendered to the 1st defendant. That this claim is based on a purported master-servant relationship between the
claimants and the 1st defendant. This being the case, that the names of the 2nd, 3rd and 4th defendants should be
struck out. That the claimants did not say that the 2nd, 3rd and 4th defendants are in a master-servant relationship with
them; and this Court can only exercise jurisdiction in respect of matters involving an employer and employee
relationship, citing section 254C(1) of the 1999 Constitution. That since the claimants claim that they were employed by
the 1st defendant, they can only sue the 1st defendant alone before this Court, citing SCC (Nig.) Ltd & ors v. Yusuf Sedi
[2013] 7 NWLR (Pt. 1352) 1 and NUT, Niger State v. COSST, Niger State Chapter & ors [2012] 1 NWLR (Pt. 1307) 89 at
112 – 113.
5. Additionally, that the claimants’ claim and the entire gamut of their statement of facts do to reveal a cause of action
against the 2nd, 3rd and 4th defendants justiciable before this Court. To the defendants, the claimants stated in their
statement of facts that they were employed by the 1st defendant and that the 1st defendant has failed to pay for the
services rendered, and nowhere did the claimants state that they were employed by the 2nd, 3rd and 4th defendants or
that the said defendants owe them. In consequence, that no cause of action has been disclosed by the claimants
against the said defendant. That the names of the 2nd, 3rd and 4th defendants should accordingly be struck out, citing
Duru v. Nwagwu [2006] All FWLR (Pt. 334) 1830, Veralam Holdings Ltd v. Galba Ltd & anor [2014] LPELR-22671(CA)
and Ajayi v. Jolayemi [2001] 5 SC 31 at 57.
6. The defendants continued that the 2nd, 3rd and 4th defendants are not necessary parties to this suit nor are their
interests affected by the claims of the claimants, citing Mobil Producing (Nig.) Unltd v. LASEPA & ors [2002] 12 SCNJ
76, Union Beverages Ltd v. Pepsi Cola Int. Ltd [1994] 3 NWLR (Pt. 330) 1 at 17, Uku v. Okumagba [1974] 3 SC 35 and
Anabaronye v. Nwakaihe [1997] 1 SC 161 at 163. That the issues involved in the claimants suit do to affect the 2nd, 3rd
and 4th defendants and can be settled one way or the other in there absence of the 2nd, 3rd and 4th defendants, urging
the Court to so hold. In conclusion, the defendants urged the Court to strike out the names of the 2nd, 3rd and 4th
defendants from this suit.
7. The claimants on their part also submitted one issue for the determination of the Court, to wit: whether given all the
necessary applicable facts, the Honourable Court ought not to dismiss the application herein. To the claimants, the
defendants’ objection is misconceived. That not only is it that trial started, which makes the objection otiose and so
belated, Order 13 Rules 4 and 6 under which the application for striking out was brought permit and allow that action
may be maintained against them. Rule 4 provides for joinder and Rule 6(1) provides that it shall not be necessary for
every defendant to be interested in all the reliefs prayed for or as to every cause of action included in any proceeding
against such a defendant. The claimants also relied on Order 13 Rules 7, 8, 11(1) and 14(3) as Rules that support the
maintaining of this action against all the 2nd – 4th defendants. The claimants then submitted that all of this permits
multiple parties having something to do with the relevant cause of action. The claimants went on to ask whether the 2nd
– 4th defendants are relevant to this action. To answer this question, the claimants referred to the reliefs they seek, the
pleadings including the statement of defence given Order 13 Rule 6(2), which allows the Court to consider the defence
filed in determining the right parties before the Court, and the written deposition filed in this action by the defendants, as
well as section 254C(1)(a) and (k) of the 1999 Constitution. To the claimants, the issues they bring before this Court are
issues that safely qualify as matters relating to or connected with labour and employment (i.e. the contract of
employment in issue in this case) in terms of section 254C(1)(a) of the 1999 Constitution, citing NLNG Ltd v. Green
[2010] All FWLR (Pt. 530) 1300 at 1312 and SPDC Ltd v. Isaiah [2001] FWLR (Pt. 56) 608 at 628.
8. The claimants continued that as per the reliefs they claim, they had pleaded in paragraphs 3, 4 and 5 of the statement
of facts how the 1st defendant coordinates other persons including the 2nd defendant, the roles of the 3rd defendant,
and all defendants reporting to the 4th defendant as head, facts that the statement of defence did not deny. That in
paragraph 11 they pleaded that they came into possession of the property they occupy by virtue of the employment, a
fact the defendants joined issues with the claimants. Also referred to are paragraphs 12, 13, 30, 31, 33 and 37 as
containing facts connected with the contract in issue, citing Buhari v. INEC [2009] All FWLR (Pt. 459) 419 and Allison v.
Clever [2016] All FWLR (Pt. 855) 153. To the claimants, the 2nd – 4th defendants are equal owners and employers
herein; and all actions alleged against them are either allegedly done both as employer de facto, or the actions as in
paragraphs 16 – 18, 23 – 31, 33 – 35 and 37 of the statement of facts, are either relating to or connected with the
employment of the claimants or the labour thereto. In any event, that even where the 2nd – 4th defendants allege that
they have no connection with the contract, they had shown that they were either involved in or interfered with the
contract this making themselves liable on the contract. Furthermore, that the claimants adduced that they are on the
property they occupy under and by virtue of the contract of employment, which the 2nd – 4th defendants had take steps
in breach of as well as against the personal liberty of the claimants especially the 2nd claimant, referring to the second
limb of relief (1). That this makes the 2nd – 4th defendants to be necessary parties to answer to the issues raised as
enjoined by Order 13 Rules 4 and 6(1).
9. On the submission of the defendants that no cause of action has been revealed against the 2nd – 4th defendants, the
claimants referred to paragraph 3 of the statement of facts and then submitted that since the 1st defendant coordinates
other defendants then they must all be in a team. The claimants referred further to paragraphs11, 19, 21, 23, 26, 27, 28,
29, 30 and 35 as evidence of their conclusion. In conclusion, the claimants urged the Court to dismiss the defendant’s
preliminary objection with substantial cost.
10. Other than a further and better affidavit, the defendants did not file a reply on points of law.
COURT’S DECISION
11. The issue before the Court calling for determination is whether there is no cause of action against the 2nd to 4th
defendants as to warrant their names being struck out from this suit. While the defendants think that no cause of action
against them has been disclosed, the claimants think one has been so disclosed. The claimants relied greatly on Order
13 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 in submitting that a cause of action has been
disclosed against the 2nd to 4th defendants as to make the suit competent against them and for which this Court has
jurisdiction to hear the suit. Order 13 of the National Industrial Court of Nigeria (NICN) Rules 2017 deals with parties.
The old NIC Rules 2007 did not have a similar provision especially in terms of joinder of parties, which is what Rule 6 of
Order 13 provides for. Rule 4 of Order 13 permits any person against whom a right or relief is claimed to be joined as a
party. Rule 6 of same Order provides that it is not necessary for every defendant to be interested in all reliefs before
such a defendant is made a party. Rule 7 gives the claimant the discretion to join as parties all or any persons liable on
any reliefs in the case. Rule 8 permits a claimant in doubt to join two or more defendants with intent that the question as
to which of the defendants is liable may be determined as between all the parties. Rule 11(1) permits one or more
persons having same interest in a matter to be sued on behalf of or for the benefit of the numerous persons having
same interest. And Rule 14(3) permits the Court to order the joinder of any person whose presence before the Court is
necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings. In all of
these scenarios, a cause of action must exist before the joinder of the party of the representative action can be valid. In
this sense, the claimants got it wrong in thinking that these Rules of Court are in themselves, and without more, what
validates more than one defendant as parties to an action. Where no cause of action is disclosed against a defendant,
the action against that defendant cannot stand simply because the claimant thinks there is a cause of action. Even when
Rule 8 provides that a claimant in doubt may join two or more defendants, the question may arise as to who between the
two or more defendants is able to recompense him; and once a defendant is found in that scenario not to have a cause
of action disclosed against him, that defendant must be struck off the suit as soon as the realization is reached that no
cause of action has been disclosed against such a defendant. The point is that once there is no cause of action
disclosed against a defendant, the fact that the claimants think that there is one cannot sustain an action against such a
defendant. I do not think that the claimants appreciated this point in their use of Order 13 of the NICN Rules 2017.
12. The question presently is whether the claimants have disclosed a cause of action as against the 2nd to 4th
defendants as to warrant this Court not striking out their names from this suit. Relying on Muhammad v. Military
Administrator, Plateau State [2001] 16 NWLR (Pt.740) 510 at 544 – 545 and Yusuf v. CCB Ltd [1994] 7 NWLR (Pt. 359)
676, Peter-Odili, JSC in AG of Adamawa State & ors v. AG of the Federation [2014] LPELR-23221(SC) defined cause of
action as the fact(s) which establish or give rise to a right of action. It is the factual situation which gives a person a right
to judicial relief. In the instant suit, what then are the fact(s) which give rise to a right of action against the 2nd to 4th
defendants’ This remains the question. The claimant referred this Court to paragraphs 3 to 5 of the statement of facts.
These paragraphs are, however, merely descriptive of the 2nd, 3rd and 4th defendants. The fact that the 1st defendant
coordinates the 2nd defendant (paragraph 3), or that the 3rd defendant is an agent of the 1st defendant (paragraph 4),
or that the 4th defendant is heir apparent to whom ‘all other owners herein report to as head of family thereof’
(paragraph 5) is not conclusive disclosure of a cause of action against each of them as the claimants argued. After all, in
the case of an agent, whether the agent is liable would depend on the nature of the terms of the contract and the
surrounding circumstances. See Asafa Foods Factory Ltd v. Alraine (Nig.) Ltd & anor [2002] LPELR-570(SC); [2002]
NWLR 12 (Pt. 781)353; [2002] 5 SC (Pt. I) 1; [2002] 52 WRN 1 SC.
13. The claimant referred to the second limb of relief (1) wherein the claimants seek for ‘N50,000,000.00 damages as
compensation for all the harassments, Police arrests, detentions and inconveniences the claimants had been subjected
to on accounts of and in the course of carrying their schedule of duties on the contract herein, and those further
instigated by the defendants on account of their efforts at unlawfully ejecting the claimants from the property he occupies
of the defendants in relation to the performance of his duties herein’. In support of this relief are paragraphs 30, 31, 33,
34, 37, 40, 41 of the statement of facts, which all deal with the claimants’ complaint of ‘harassments, Police arrests,
detentions and inconveniences’. And by Exhibit C14 dated 5th February 2009, the 2nd defendant is described as
landlord, while the 3rd defendant is said to have been appointed to manage the property and collect rents. This Court
has generally declined jurisdiction over trespass, whether to land or the person, and to a large extent tenancy issues
even when the matters incidental thereto argument was used. In Mr. Oyebanji Julius Odeniyi & 11 ors v. Shell Petroleum
Development Company of Nigeria Limited unreported Suit No. NICN/LA/648/2013, the ruling of which was delivered on
2nd July 2015, for instance, this Court rejected jurisdiction (even under the matters incidental to labour or employment
argument) where the claimants prayed for orders proclaiming them owners of the houses they occupy, refund of excess
money paid in respect of the houses, declaration that the attempted sale of the houses by the defendant contrary to the
Federal Government Housing Scheme 1977 is illegal, refund of part-payment deposited in respect of the houses and
payment of retained severance benefits, which were retained in relation to the said houses. Also, in Mr. Ojeka John
Ashibene v. Access Group of Schools & anor unreported Suit No. NICN/CA/18/2013, the judgment of which was
delivered on 8th March 2016, Agbakoba J of this Court, relying on Nwana v. FCDA [2004] 13 NWLR (Pt. 889) 128 SC,
refused to accommodate claims relating to tenancy issues. The claims in the case were for declarations as to the legality
of the defendant’s act of forcefully ejecting the claimant; the defendants sealing and locking up the claimant’s apartment
for 3 years; and an order for the payment of sum of Ten Million Naira for trespass and unlawful seizure and sealing of
properties. And in Mr Ebenezer Omonijo & 24 ors Egbin Power Plc unreported Suit No. NICN/LA/71/2016, the ruling of
which was delivered on 9th February 2017, this Court rejected jurisdiction over claims for trespass to land. As for
trespass to the person, this Court declined jurisdiction in a case where an applicant was assaulted by fellow workers or
superior officers and orally abused. See Geoffery v. Setraco Nigeria Ltd & ors unreported Suit No. NIC/ABJ/296/2012,
the ruling of which was delivered on 4th March 2013 and Francis v. Bedebede & ors [2012] 26 NLLR 38. Given these
authorities, this Court cannot assume jurisdiction over the second limb of relief (1) as the claimants may seem to think;
and thereby over the 2nd and 3rd defendants given their description as per Exhibit C14. I so hold.
14. Relief (3) is for ‘a declaration that the occupation of the claimants in one of the duplexes the cause of this action
herein being brought about by the relationship between the defendants and the claimants, the claimants cannot be
compelled to vacate the premises until the defendants bring the entire relationship to a full and final determination by the
payments over to the claimants of all the outstanding owing by all the defendants, either individually, jointly or
collectively, to the claimants’. I indicated earlier that in Mr. Ojeka John Ashibene v. Access Group of Schools & anor
(supra), this Court refused to accommodate claims relating to tenancy issues. For this same reason, relief (3) in the
instant suit cannot be entertained by this Court. I so hold.
15. The first limb of relief (1) is for ‘the sum of N82,161,000.00 (Eighty-Two Million, One Hundred and Sixty-One
Thousand Naira) being N32,161,000.00 outstanding indebtedness accruing from the defendants to claimants for
provision of security services rendered by the claimants under the contract of service entered into by defendants with
the claimants by virtue of which the claimants were engaged as security agents under and by virtue of the contract
constituted by the letter of appointment dated 11th April, 2000 to that service, which the defendants had failed, refused
and or neglected to pay despite repeated demands for such payments’. By this relief, the claimants are claiming as per a
contract they entered for the provision of security services. By paragraph 10 of the statement of facts, this contract was
entered into by one Alhaji Mohammed Abubakar on behalf of the 1st defendant. Nowhere in the statement of facts is it
stated that the 2nd to 4th defendants are also parties to this contract. The closest there is, is paragraph 16 of the
statement of facts in which the claimants pleaded that one Capt. Sulaiman Sanusi stated that the 4th defendant had
approved the said Sulaiman Sanusi to take over the management of the houses in issue and let out same to tenants
from which the claimants’ arrears of indebtedness and future dues would be paid. And in paragraphs 19, 23 and 25, the
claimants themselves pleaded that their demand for payment of outstanding arrears of indebtedness to the defendants
including the 4th defendant were not acceded to. In paragraph 26, the claimants pleaded that a staff of the 3rd
defendant, however, wrote a letter to express anger at the 2nd claimant writing to the Presidency on the issues at hand.
In paragraph 27, the pleading is that the defendants instituted a suit at the Lagos State High Court through the 2nd
defendant acting through a lawyer who signed under a different firm name against the claimants in Suit No.
LD/1425/2010 for recovery of possession against the 2nd claimant. And in paragraph 36, the 4th defendant is described
as Managing Director (MD) of the 1st defendant. However, Exhibit C4, dated April 11, 2000 and signed by Mohammed
Abubakar for Selcon/Sabaco International Ltd, describes the 4th defendant as MD of Selcon/Sabaco International Ltd.
This fact raises the issue of identity. The 1st defendant as per the complaint in this suit is ‘Sabaco Limited’, not
‘Selcon/Sabaco International Ltd’; and the rule is that where there is a mistake as to identity of a party in a suit, there is
no proper/competent suit against that party. See Pfizer Incorporated & anor v. Prof. Idris Mohammed [2013] 16 NWLR
(Pt. 1379) 155.
16. In all, what is left in terms of the reliefs of the claimants and the jurisdiction of this Court over same are the first limb
of relief (1) as well as relief (2), the claim for interest. The Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd
& 2 ors [2008] 18 NWLR (Pt. 1118) 77 SC; [2008] 4 ‘ 5 SC (Pt. II) 117 held that a contract between two corporate entities
to supply security guards is a contract of service/employment as between the corporate entities. Additionally, Part II of
the Labour Act 2004 (sections 23 ‘ 48) deals with ‘recruiting’, a term defined under section 91(1) of the Labour Act 2004
to include ‘all operations undertaken with the object of obtaining or supplying the labour of persons who do not
spontaneously offer their services at the place of employment, at a public emigration or employment office or at an office
conducted by an employer’s association and supervised by the Minister’ (emphasis is the Court’s). For the Labour Act to
regulate recruiting means only one thing: that recruiting, even when it relates to supply of labour (or security guards as
was the case in Shena), is an employment issue. See generally Ozafe Nigeria Limited v. Access Bank of Nigeria Plc
unreported Suit No. NICN/LA/179/2014 the ruling of which was delivered on 16th March 2016. It is in this sense that this
Court is assuming jurisdiction over only the first limb of relief (1). Relief (2) is an ancillary relief to the first limb of relief
(1), hence the assumption of jurisdiction by this Court.
17. On the whole, and for the reasons given, it is my holding that the objection of the defendants have merit. It
succeeds. The names of the 2nd, 3rd and 4th defendants are hereby struck off this suit. All processes are to be
amended to give effect to this order. Additionally, I hold that this Court has jurisdiction only over the first limb of relief (1)
as well as relief (2) to the extent that relief (2) relates to only the first limb of relief (1); even at this, the jurisdiction I
assume is contingent on resolving the identity question as between ‘Sabaco Limited’ (the only defendant now left in this
suit) and ‘Selcon/Sabaco International Ltd’, the company talked of in Exhibit C4. I so hold.
18. Ruling is entered accordingly. I make no order as to cost.
”””””””
Hon. Justice B. B. Kanyip, PhD
