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National Industrial Court

Mr. Emmanuel Ebare & 3 ORS -VS- Constable Johnson Idiong & 5 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 7TH FEBRUARY, 2019                 SUIT NO: NICN/CA/44/2013

 

BETWEEN:

 

  1. MR. EMMANUEL EBARE
  2. MR. CHRIS EBARE
  3. MASTER PRECIOUS EBARE                             CLAIMANTS
  4. ROSEMARY EBARE

 

AND

 

  1. CONSTABLE JOHNSON IDIONG
  2. THE DIVISIONAL POLICE OFFICER,

EKET POLICE DIVISION                                              

  1. THE COMMISSIONER OF POLICE

AKWA IBOM STATE                                                        

  1.         POLICE PENSION BOARD                                             DEFENDANTS
  2.         INSPECTOR GENERAL OF POLICE
  3. POLICE SERVICE COMMISSION
  4.         NATIONAL SOCIAL INSURANCE TRUST

            FUND MANAGEMENT BOARD

 

REPRESENTATION:

 

GLORY DANIEL FOR THE CLAIMANT.

NO REPRESENTATION FOR THE DEFENDANTS.

 

JUDGMENT

The 1st, 3ndand 4thClaimants are children of the Police Constable Solomon IkuenebeEbarewho was killed by the 1st Defendant in the line of duty on 17th of December, 2010. The 2nd Claimant is the elder brother of the deceased Police Constable. The 2nd Defendant assisted in burial and the interment of the deceased at his hometown with a promise to process compensation and other benefits of the deceased soon. When all efforts to see that this is realised proved abortive, the Claimants took out a Complaint on the 21st February, 2013 and by an Amended Statement of Facts dated and filed on 13th November, 2013 prayed for the following reliefs:

 

  1. A declaration that the continuous withholding of the 1st, 3rd and 4th Claimant’s entitlements without just cause is wrongful, null and void and a deliberate attempt to cause the claimants untold hardship.

 

  1. A monthly payment of sum equal to 90 percent of the total monthly rate of compensation.

 

  1. Monthly payments to eligible children up to the age of 21 or until they complete undergraduate studies whichever comes first.

 

  1. An Order directing the Defendants to pay the 1st, 3rdand 4th Claimants the sum of or such other sums as shall be calculated to be due to the claimants such as:

 

  1. a)The payment of the statutory five hundred thousand naira (N500,000.00) only.
  2. b)Life Assurance calculated at N1,350,000.00 (One Million, Three Hundred and fifty thousand naira) only.
  3. c)Nigeria Police Welfare fixed at N100,000.00 (One Hundred Thousand Naira) only.
  4. d)Police Pensions Fund Administrative/ Gratuity.

 

  1. An order directing the Defendants to compute and pay the claimants, through their attorney in this suit, all the deceased entitlements due, had the deceased had outlived the thirty five (35) years of service.

 

  1. And the sum of Ten Million Naira (N10,000,000.00) only as exemplary damages from the 1st, 2nd, 3rd, 4thand 6th Defendants.

 

The defendants did not enter any formal appearance, file any defence process and did not have any legal representation throughout the hearing of this case in spite of been put on notice at every sitting of the court. The only semblance of legal representation was whenone Tare Anyankpele, Esq filed a Motion on Notice on the 2nd April, 2014 to strike out the name 7th Defendant but failed and/or neglected to move the application. It was against this background that the Claimants applied and was granted an order setting down the matter for prove pursuant to Order 9, Rule 5 (1) and Order 35, Rule 6 (2) of the rules of this court on 18th April, 2018.

 

At the trial, the 1st and 2ndClaimants testified as CW. 1 and CW. 2 respectively and tendered two (2) documents as Exhibits as follows:

 

1. Exhibit CW 1 – Medical Certificate of the Cause of Death.

 
2. Exhibit CW 2 –

 

 Letter dated 17th March, 2011 and titled “Appeal for Justice in Respect of Constable Solomon IkuenobeEbare murdered in cold blood by one Constable Johnson Idiong.”
       
       

At the close of trial, the claimants filed their final written address on 8th January, 2019.

 

The Case of the Claimant

The case of the Claimant as stated in the Amended Statement of Facts and Statement on oath dated 13th November, 2013 are as follows:

  1. That the deceased Police Constable Solomon IkuenebeEbarewho hailed from Eror-Uromi village in Edo State joined the Nigeria Police Force in September 2003 and had Force No: 413060.
  2. That the deceased police Constable Solomon I. Ebare served at the Eket Police Division in the Divisional Traffic Department of the said Station.
  3. That the deceased was the father of Emmanuel Ebare,a student at Auchi Polytechnic, Precious Ebare a boy of seven years and Rosemary Ebarea girl of five years old.
  4. That the 1st Defendant is the police constable who boarded the Hilux Van together with the deceased and other policemen at the Divisional Police Station, Eket while proceeding on an official assignment, that is, a parade duty in honour of late Inspector on the 17th December, 2010.
  5. That the 2nd defendant is the officer in charge of the Eket Police Division where the said deceased Police Constable Solomon I. Ebare and the 1st defendant served at the Divisional Traffic Department, Eket.
  6. That the 3rd Defendant is the Police Officer in charge of the command and administration of Akwa Ibom State command to which he is appointed, the 4th defendant is an agency established to settle and make payment in respect of the retirement benefits of the para-military bodies over which it has responsibility throughout the federation and the 5th defendant is the police officer charged with the supreme command of the Nigeria Police Force. The 6th Defendant is in charge of recruitment, discipline of members of the Nigeria Police Force while the 7th Defendant is a board established under the Act which makes all payments of the various compensation or benefits to any person entitled to such compensation or benefit and make all disbursements required to be made out of the fund.
  7. That the deceased Police Constable Solomon IkuenobeEbare joined the Nigeria Police Force in September, 2003 and had the Force No: 413060. He hailed from Eror-Uromi village in Edo State, had Emmanuel Ebare, who was a student at Auchi Polytechnic, Precious Ebare who is a boy of seven years old and Rosemary Ebare who is a girl of five years old, were all dependent on the deceased Police Constable for the provision of necessaries of life.
  8. That the deceased Police Constable Solomon I. Ebare was ordered or assigned to the official parade at the burial ceremony of one late Inspector on the 17th of December 2010 and had boarded the Police Hilux van with registration number DB 986 PHC to execute the orders of the 2nd defendant.
  9. That in the Hilux Van were other Police personnel including the 1st Defendant, with the 1st Defendant taking a standing pose behind the deceased, who did not anticipate the wilful conduct of the 1st Defendant.
  10. That the  driver of the said Hilux van had not driven the said van out of the Divisional Police Station, Eket, when a loud blast was heard and a frantic 1st Defendant jumped out of the said van, flung his rifle away and took to his heels. He was given a hot chase and later arrested by a patrol team made up of mobile policemen who arrived the scene in time to see the 1st Defendant escaping.
  11. That the loud blast turned out to be a live bullet shot from the rifle of the 1st Defendant that killed the Police Constable Solomon I. Ebare in cold blood instantly.
  12. That the body of the deceased Police Constable was taken to and deposited at the Immanuel Hospital, Eket mortuary by well-wishers.
  13. That after the corpse was examined and report of the cause of his death was primarily ascertained to be gun shot and the secondary cause was cardio-respiratory arrest from the gun shot injury and the death certificate was later issued on the 20th January 2011.
  14. That on the 18th of December 2010, the 2nd Claimant came with a delegation from Uromi, Edo State and met with the 3rd Defendant to make arrangements for the obsequies of the deceased.
  15. That the 2nd Defendant not only assisted them in making adequate preparations for the interment of the body of the deceased at his hometown, had promised that the deceased compensation benefit and other benefits would soon be processed.
  16. That the 1st Claimant after the burial of their father, came back to Eket, met severally with the 2nd Defendant over the procedure to collect the Defendant’s benefits but the constant change of officers occupying the office of the 2nd Defendant made the process strained.
  17. That the 2nd Claimant had cause to bring this state of affairs to the Police through a letter to the 5th Defendant (which was copied to other bodies) on the 11thof March 2011 titled: Re: Appeal for Justice in Respect of Constable Solomon IkuenobeEbare murdered in Cold Blood by one Constable Johnson Idiong.This exhibit CW. 2.
  18. That the 1stClaimant has been visiting the Police Force Headquarters at Abuja regularly on this matter but nothing came out of it.
  19. That the Defendants have refused or/and neglected to pay any of the entitlements that are accrued to the Claimants or beneficiaries of the deceased since the year 2010.
  20. That the deceased had served the Nigeria Police Force for seven (7) years and was to attend a corporal course before his untimely death and would have spent more years in the police before his retirement especially given the fact that they have a history of longevity in his family.
  21. That the dependents or survivors of the deceased are entitled to compensation and death benefits.

 

Claimants’ Submission:

The Claimants submitted two (2) issues for determination, to wit:

  1. Whether the Claimants had by credible evidence established their case against the Defendants for this Honourable Court to grant their reliefs.
  2. Whether failure of the Defendants to file their respective processes in court is fatal to their case.

On issue one and for the purpose of proving paternal affinity, the Claimants relied on paragraphs 1, 2, 6 and 17 of theamended written statement on oath.

On the employmentof the deceased by the 6th Defendant, the Claimants relied on paragraph 6 of the amended written statement on oath of the 1st Claimant to the effect that the deceased joined the Nigeria Police Force in September 2003 and was given Force No: 413060.

 

On the cause of death, the Claimants relied on paragraph 3, 7, 8 and 9 of the amended written statement on oath of the 1st Claimant to the effect that it was gun shots from the 1st Defendant that resulted in death of the deceased and tendered Death Certificate. The Claimants also relied on paragraphs 11, 12 and 13 of amended statement on oath of the 1stClaimant to proof the refusal or neglect by the Defendants to pay the death benefits to the claimants.

 

The Claimants submitted that the reliefs sought in the case is based on section 17(1) a (i) &(c) of the Employee’s Compensation Act, 2010whilerelying on the case of Eliochin (Nigeria) Ltd. &Ors v. Mbadiwe (1986) NWLR (PT. 14) 49 H7 and 18 for the exemplary damages to be awarded in view of the flagrant disregard of the law by the Defendants. To further make a case for the award of exemplary damages in their favour, the Claimants cited the case of Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (PT. 1290) 219 H. 19.

It is also the submission of the Claimants that since the aforementioned paragraphs and evidence thereof are not contradicted, challenged, controverted or rebutted by the defence, same must be accepted by the court. The case of Okike v. L.P.D.C (2005) 15 NWLR (PT. 947) H.7 471 5Cis cited as authority.

 

Furthermore, the Claimants argued that since civil suits are decided on preponderance of evidence and balance of probability and by virtue of Section 131 of the Evidence Act, 2011, he who asserts must prove, the Claimants in the instant case have discharged this burden by cogent and credible evidence.

 

The Court is therefore urged to grant the reliefs sought in view of the fact that the Claimants’ evidence have not been challenged, contradicted, controverted or rebutted by the defence.

 

On the second issue which is whether the failure of the Defendants to file any defence is fatal to their case, the Claimants submitted that pleadings is meant to compel parties to defend accurately and precisely the issues upon which the case between them is to be contested to avoid element of surprise by either party. It is also submitted that it guides parties not to give evidence outside pleadings citing the cases of Oshodi v. Eyifunmi (2000) 7 AC (pt. 2) 144 4SC (Pt 1) 85 and Mobil Oil Nig Plc. v. I.A.L. 36 Inc. (2000) (incomplete citation).

 

The Claimants further submitted that parties are bound by their pleadings and cannot make a case outside their pleadings in line with the cases of Okinola v. V.C,Unilorin (2004) 11 NWLR (Pt 885) 616 CAand Buhari v. Obasanjo (2005) 7 NWLR (Pt. 910) 241 CA. Failure of the Defendants to file their pleadings as in the instant case is therefore fatal to their case.

 

It is also argued by the Claimants that where an averment in a party’s pleadings is not traversed or denied, as in the instant case, it is deemed admitted placing reliance on the case of British Airways v. Makanjuola (1993) 8 NWLR (PT 311) 276 CA. The Claimants reiterated that the case was instituted on the 21st of February, 2013 and all the Court processes and hearing notices were served on the Defendants for every sitting of the court, except on the 18th April, 2018 and 16th May, 2018 when the court adjourned for the 4th Defendant to be served.

 

The Claimants submitted that having failed to put in appearance and file their Defence or contradict the oral evidence given at the trial, the Court should take the facts as uncontested and rely on such unchallenged evidence in coming to its decision. The Claimants provided a quotation from the case of Mil. Gov. Lagos State v. Adeyiga (2012) 5 NWLR (PT. 1293) 305 H.9 where it was held that:

“Where evidence is unchallenged or uncontroverted such evidence will be accepted as proof of a fact it seeks to establish. A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstances, the onus of proof is naturally discharged on a minimum proof.”

 

The Claimants also stressed the importance of the issue of service of process stating that service of process whether personal or substituted is to give notice to the other party of the case against him for possible resistance as in the case of Onenye v. Chukwuma (2005) 17 NWLR (PT. 953) 90 H. 4, 5 and 7.The Claimants therefore invited the court to hold that service of the Complaint and other accompanying processes; the Amended Statement of Facts, the Hearing notices ordered, and other court processes has created on the Defendants the awareness of a suit against them and they are not able to resist the claims sought against them.

 

Finally, the Claimants in the light of the foregoing, submitted that the Claimants have satisfied the condition for the award of the reliefs sought.

 

Decision of the Court

Before I proceed to consider the case proper, I need to dispose of a motion on notice which is unattended to in the case file. The 7th Defendant had a motion dated and filed on the 2nd April, 2014 praying for an order to strike out its name from the suit for failure to disclose any cause of action among others. To this, the Claimant filed a Counter Affidavit on 24th April, 2014 while the 7th Defendant filed a Reply on Point of Law on 21st May, 2014. But for some curious reasons this motion has remained dormant to date. Since the court is enjoined by several judicial authorities and Order 17, Rule 11 and Order 18, Rule 1of NICN (Civil Procedure) Rules, 2017 to rule on any motion filed before judgment, I have no option but to so do since all the processes are before the court. The Supreme Court cases ofDingyadi v. INEC (2010) 42 (Pt. 2) N.S.C.Q.R. 707 and Albert Akpanv. Bob (2010) 43 N.S.C.Q.R. 446 are cases in point.

 

The Motion on Notice is pursuant to the Order 11, Rules 1 (1) &2 (1) of the rules of this court and section 6 (6) of the 1999 Constitution and wherein the Claimant prayed for the following orders:

 

  1. An order striking out the name of the 7thDefendant from this suit.
  2. And for such further or other orders as this honourable court may deem fit to make in the circumstances.

 

The grounds for this Application are as follows:

  1. The Claimants failed to plead facts showing compliance with the mandatory conditions precedent to making a claim against the 7thDefendant for compensation for the deceased Police Constable Solomon IkuenebeEbare.
  2. The Suit does not disclose any cause of action against the 7thDefendant.
  3. The suit with respect to the 7thDefendant is incompetent.
  4. This Honourable Court cannot therefore exercise jurisdiction in this Suit with respect to the 7th Defendant.

 

The Motion on Notice is supported by an affidavit of 8 paragraphs disposed to by Tare Anyamkpeleesq and a written address filed on 2nd April, 2014. The Claimants filed a counter-affidavit deposed to by the 1st Claimant and a written address on 24th April, 2014.  The 7thdefendant also filed a Reply on Points of Law on the 21st May, 2014 by leave of court.

 

Submission of 7th Defendant/Applicant

 

The 7th Defendant formulated a lone issue for determination, to wit, whether in the peculiar circumstances of this case, this Honourable Court has the jurisdiction to entertain this Suit with respect to the 7thDefendant?

 

The 7th Defendant started by stating that the Federal Government by Section 56 of the Employees Compensation Act, No. 13 of 2010, has established the Employees Compensation Fund into which all monies, funds or contributions by employers shall be paid for adequate compensation to employees or their dependants for any death, injury, disability or disease arising out of or in the course of employment.

 

The 7th Defendant also noted that by virtue of the provisions of Sections 2(2) and 57 of the said Act, the 7thDefendant is vested with the power to implement the said Act and manage the said fund and submitted that claims for monetary compensations for death of an employee arising in the course of employment can only be made against the 7thDefendant by virtue of the provisions of the said Act.

 

It is the further submission of 7th Defendant that any claim for compensation against the 7thDefendant can only be sustained if the conditions precedent to such claims as prescribed in the said Employees Compensation Act has been complied with. The 7th Defendant went to submit that where a condition precedent for the filing of an action has not been met, such an action is incompetent and the Court would be deprived of the jurisdiction to entertain same citing Orakul Resources Limited vs. N.C.C. (2007) 16 NWLR Part 1060 Page 270 AT 380 E – F, where the Court held as follows:

“From the foregoing therefore I have no difficulty in answering this issue in the positive and swing along with the contentions of the Respondents that the Appellants not complying with the conditions precedent have deprived themselves of the exercise of the Court’s jurisdiction. In fact the Court’s jurisdiction was ousted on account of the non-compliance with the conditions precedent.”

 

On the same issue the 7th Defendant cited the case of Nigercare Dev. Co. Ltd v. A.S.W.B (2008) 9NWLR (PT. 1093) 498 @ 527 Paras C-D, in which Tobi, JSC as he then was stated thus:

“Where a statute provides for a condition precedent to the filing of an action in a court of law and that condition is not met, the action is not justiciable and a court of law has no jurisdiction to invoke its section 6 of its judicial powers….”

 

It is also submitted that the Suit as against the 7thDefendant does not disclose any cause of action as the Claimants failed to plead facts showing that they complied with the conditions precedent under the said Act. The conditions precedent to the making of such a claim were enumerated as provided in section 5 (3), (4) &(5) and Section 6 (1) &(2) of the said Act respectively to the effect that:

  1. The employers of a deceased employee are required to make a report of the death of the deceased to the 7thDefendant and the local representative of the 7thDefendant.
  2. An application for compensation shall be made on the form prescribed by the Board and shall be signed by the employee or deceased employee’s dependant within one year after the date of death, injury or disability.

 

The 7th Defendant maintained that even though the Act is silent as to the entitlement of an employee of an organization that does not make monetary contributions to the Fund, it is a condition precedent for an employee of an organization to receive compensation under the said Act, for his employers to be making their due contributions to the Fund as required by the Act. This is because the fund, apart from the initial take off grant from the Federal Government, is dependent on the contributions of the employers and it will not be proper to use the contributions of other employers in paying compensation to employees of other organisations that are not making contributions to the said fund.

 

The 7th Defendant forcefully submitted that the Claimants failed to plead that the Nigeria Police Force or The Police Service Commission or even the Inspector-General of Police, who are the employers of the said deceased Police Constable made any contributions to the said fund.

 

It is therefore the argument of the 7th Defendant that even if the Claimants prove all the facts they have pleaded in their Statement of Facts and or the amendment thereof, they will not still be entitled to the payment of the compensation sought for from the 7thDefendant as they have not shown that the conditions precedent for the 7thDefendant to pay compensations under the Act have been complied with. In such a situation, a case is said not to disclose any cause of action, citing the case of Tate Industries Plc vs.Devcom Merchant Bank Limited (Supra) at 222H – 221A, where the Court held as follows:

“Where the Plaintiff’s statement of claim does not disclose a cause of action, that is where even if all the allegations of fact therein averred are established yet still the Plaintiff would not be entitled to the relief sought, there instead of filing a statement of defence, the Defendant should move the Court to have the case dismissed.”

 

Finally, the 7th Defendant submitted that since the Suit filed by the Claimants does not disclose any cause of action against the 7thDefendant, the Court lacks the jurisdiction to entertain the Suit as against thesaid 7thDefendant and urged the Court to resolve this issue in favour of the 7thDefendant/Applicant.

 

Submission of Claimants/Respondents

In opposing this application, the claimants formulated three (3) issues for determination,   to wit:

  1. Whether the wordings in the provisions of the Employee’s Compensation Act No. 13 2010 have mandatory local administrative remedies for the claimants to exhaust which are conditions precedent to the institution of an action against the 7thDefendant?

 

  1. Whether the non-compliance of the 7thDefendant with the rules of court does rob this Honourable Court with jurisdiction to hear the 7thDefendant?

 

  1. Whether the failure on the part of the 7thDefendant/Applicant to state all the facts he intends to rely on his Affidavit would not make its said application to be abandoned and a nullity?

 

On issue 1, the Claimants noted that 7th Defendant/Applicant’s had introduced the term “condition precedent” into the provisions of the Employee’s Compensation Act No. 13 of 2010 by submitting that Sections 5(3), 4, 5 and 6 (1) & (2) are conditions precedent to the making of a claim and submitted that that there are no conditions precedent in the wordings of the said Act. The Claimants further submitted that said Act does not stipulate the procedure to be followed when an act or decision of an authority is challenged nor does it prescribed a remedy leftto be exhausted before access to Court.

 

The Claimants defined a condition precedent as “one which delays the vesting of right until the happening of an event.”And it gives the Defendant “breathing time so as to enable him to determine whether he should makereparation to the Plaintiff and cited Amadiv NNPC (2000) 10 NWLR (Pt 674) 81 H.1 at page 82, in which Mohammed, JSC, held:

“No Suit shall be commenced against the corporation before the expiration of a period of one month after written notice of intention to commence the Suit shall have been served upon the Corporation by the intending plaintiff or his agent ….”

 

The Claimants attacked the case of Orakal Resources Ltd v. Nigerian Communications Commission (2007) 16 NWLR (Pt 1060) 270cited by the 7thDefendant cited for not being on all fours with the facts of the case at hand. The Claimants invited the court to note that in that case the Court of Appeal considered the provisions of sections 86, 87 and 88 of the Nigerian Communications Acts, 2003 and quotedsection 88(8) it states that:

“A person shall not apply to the Court for a judicial review unless that person has first exhausted all other remedies provided under the Act.”

 

It is the contention of Claimants that neither Sections 5(3), (4) and (5), 6(1) and (2) nor  the seventy four (74) sections of the Employee’s Compensation Act, 2010 contained impliedly or explicitly any pre-action or condition precedent for the claimants to exhaust before taking an action. The Claimants therefore argued that the authorities cited by learned Counsel are distinguishable from the case at hand and thus not applicable and urged the court to hold that there is a cause of action disclosed against the 7thDefendant through the Statement of Facts of the Claimants.

 

Finally on the point, the Claimants submitted that the said Act does not bar or regulate the Claimants from access to the Court upon the exhaustion of the remedies and urged the court to hold that there are no pre-action notice or condition precedent to be exhausted in the Employee’s Compensation Act, to rob of the jurisdiction of this court.

On issue two (2) which is failure to comply with Order 8, Rule (1), (1), the Claimants posited that the 7thDefendant filed the motion on notice almost a year after the institution of this case and without filing a Memorandum of Appearance in the Registry of the Court. Under the circumstance, the Claimants submitted that the 7thDefendant has not entered appearance in this case and since Rules of Court are not made for fun but to be obeyed, the 7th Defendant must adhere to and not contravened or ignored the rules. In support of this proposition of the law, the Claimants cited the cases of Ekeiloanya v.Anyaonu(2003) 7 NWLR (pt819) 259 @ 263 11. 3, AbiaState Transport Corporation v.Quarum Consortium Ltd (2009) 38 NSCQR (Pt. 1) 80 at 114.

 

Furthermore, the Claimants submitted that the 7th Defendant’s objection is premature and incompetent in law as it amounts to a demurrer quoting the case of Moyosore v. Gov. Kwara State (2012) 5 NWLR (pt 1293) 286 para F:

“The history of demurrer was traced to “section 27 of the old Federal High Court Rules, 1976 which was a device used in the Maritime Industry to enable a party to litigation to short circuit an otherwise, what would have been a lengthy trial, by raising an important defence which would have the effect of disposing of the case. This procedure has become archaic as it is now scrapped … ” Ratiois supra.

 

To the Claimants the method or procedure provided for by Order 9, Rule 1, no demurrer is allowed. The Claimants emphasised that Order 9 Rule 1 states that where a party served with a complaint and the accompanying documents intends to defend, the party shall not later than 14 days or any other time prescribed for defence in the complaint, file:

  1. a)Statement of Defence and Counter-Claim (if any)
  2. b)List of witnesses
  3. c)Copies of documents to be relied upon it the trial.
  4. d)Written Statements on oath of all witnesses listed to be called by the Defendant.

The Claimants submitted that contrary to this, the 7th Defendant did not file any defence wherein he could have raised the objection raised in the instant motion. Not only that the 7thDefendant has filed a supporting affidavit of eight (8) paragraphs wherein he raises issues of fact not law, which would had prompted the 7thDefendant to file a defence since cases are made out from pleadings and proved by evidence.

Finally, the Claimants submitted that since the 7thDefendant has not entered an appearance in this case, the objection is premature and ought to be struck out and urge the court to so hold.

 

On issue three (3) which is failure of the 7thDefendants depositions in his affidavit to support the prayers on the motion paper, the Claimants stressed that it is the facts deposed to in the affidavit which constitute the evidence on the basis of which the application would be tried and the relief granted or refused. Relying on the case Magnussoon v Koiki(1993) 9 NWLR (Pt 317) 296, the Claimants submitted that since applications are tried by affidavit evidence, an applicant should ensure that he has stated all the facts he intends to rely on in his affidavit. The Claimants therefore submitted that since the 7thDefendant/Applicant had prayed for an order striking out its name from this suit but has not supported that prayer with any deposition in its affidavit, the application is deemed abandoned and urged the court to so hold and strike out same for being incompetent.

 

7th Defendant’s Reply on Points of Law

The 7th Defendant’s reply consisted of two issues advanced by the Claimants in the arguments against the application, inter alia;

  1. That the 7thDefendant’s application amounts to a demurrer proceeding.
  2. That the non-filing of a memorandum of appearance by the 7thDefendant is fatal to the application.

 

On the first point, it is the submission of the 7th Defendant that the instant application is one challengingthe jurisdiction of this court to entertain the action against the7th Defendant, which clearly goes beyond the demurrer procedure as argued by the Claimants/Respondents. It is the further submission of the 7th Defendant that the jurisdiction of a court to entertain a matter is so sacrosanct that a challenge to it can be raised in any manner and at any time before any court of law, even on appeal for the first time. It is so important, argued the 7th Claimant that it must be determined first by the Court before any further step can be taken, particularly with reference to the substantive matter citing the case of Ajayi v. Adebiyi (2012) 11 NWLR (PT.1310) 137 @ 173 paras. F-H Ratio 19:

” …where an action can be decided on a preliminary objection it is manifestly absurd to suggest that the Court should take evidence.”

 

It is the contention of the 7th Defendant that there is a distinction between an objection to jurisdiction and a demurrer proceedings and it is misleading to equate demurrer with objection to jurisdiction. The 7th Defendant picked on the case of Moyosore v. Governor of Kwara State &Ors. (2012) 5NWLR (PT. 1293) 242 referred to by the Claimants and posited thatit is cited out of context. The 7th Defendant explained that in that case, the Court of Appeal in distinguishing the procedure of demurrer and a preliminary objection stated per Mbaba, J.C.A:

” … objection to jurisdiction can be taken whether or not pleadings have been exchanged in a case. The rule barring the use of demurrer cannot therefore be stretched to deny a party who has genuine and legitimate objection, touching on the jurisdiction of the court, the right of ventilating his grievance, even without exchange of pleadings, where the raising of such objection, if sustained, is capable of disposing of the whole action.”

 

It is therefore the submission of the 7th Defendant that the issue of jurisdiction can be raised and challenged even without filing and or exchange of pleadings and urged the court to so hold.

 

In answer to the second issue on the failure to comply with the rules of this court by not entering a memorandum of appearance and filing their defence within the time stipulated by the rules of court, 7th Defendant submitted that where an application before a court is a challenge to jurisdiction, the filing of a memorandum of appearance is not a necessity as the court would want to deal with the issue of jurisdiction first, before going into the substantive case or matter.

 

Furthermore, it is the contention of the 7th Defendant that the non-compliance with the rules of court, if not fundamental in nature or would cause a miscarriage of justice, should be treated as a mere irregularity, which can be easily cured, in this case, by the 7thdefendant/applicant filing a memorandum of appearance.

 

On the argument that theprayers in application is not supported with sufficient averments or dispositions in the affidavit, the 7th Defendant submitted that the argument is misconceived and simply repeated prayers in application and supplied the pertinent paragraphs 3-7 of the affidavit in support of the motion which supported the prayers sought.

 

It is therefore submitted that the issue of the 7thDefendant/applicant not stating or proffering all facts to be relied on in his affidavit, as argued by the claimants/respondents is misconceived and ought to be discountenanced and urged the court to so hold.

 

There are three (3) issues raised by the Claimants that requires the attention of this court before the consideration of the application proper. The first is the issue of conditions   precedent before the institution of action against the 7th Defendant. This issue is so interwoven with the issue of the lack of cause of action and is to be treated with the substantive application.

 

The second issue is non-compliance with rules of court in not filing memorandum of appearance before filing the instant application. The position maintained by the Claimants here is misconceived. I agree with the submission of the 7th Defendant that the non-compliance is a mere irregularity which can be cured. It was I. G. Pats-Acholonu, J.S.C. in his characteristic prose who held in the case of Duke v. Akpabuyo (2005) 12 S.C.N.J. 285:

“The term “irregularity” in respect of procedures, is most often construed by the court to denote something not being fundamentally tainting or besmirching a proceeding as to render it invalid or a nullity, id est, it is curable.”

 

It is also trite that for a party to complain about a procedural irregularity like the one here, there is the need for the party to show the procedure materially affected the case or the party has suffered a miscarriage of justice by the irregularity. See cases of Maja v. Samouris (2002) 3 S.C.N.J. 45 and Duke v. Akpabuyo(supra) at 296.

 

Similarly, the argument of the Claimants that the application is premature and incompetent as it amounts to a demurrer is totally misconceived. This application is predicated on lack of cause of action which is rooted on jurisdiction. See Forestry v. Gold (2007) 5 S.C.N.J. 314.The issue of jurisdiction can never be too early or too late for a court to consider.The issue of jurisdiction is said to be so fundamental that it can/could be raised at any stage/time by any party or even by the court. See the cases of Adesanya v. The president (1981) 1 N.C.L.R. 386; Federal Republic of Nigeria v. Lord Chief Ifegwu (2003) 15 N.W.L.R. (pt. 842) 113; Chief Ehigbe v. Chief Omokhafe& 2 ors. v.The Military Administrator Edo State of Nigeria & 2 Ors. (2004) 12 S.C.N.J. 106 and Labour Party v. INEC (2009) 2 S.C.N.J.165 to mention but a few.

 

It should also be borne in mind that an application to strike out pleadings for failure to disclose reasonable cause of action can be taken at a very early stage of the proceeding when there is only statement of claim, without any other pleadings or any other evidence. My authority for this is the case of Yusuf v. Akindipe (2000) 5 S.C.N.J. 138, per E. O. Owuegbu, J.S.C.

 

As for equating this application to a demurrer proceedings, the case of Elabanjo v. Dawodu (2006) 6 S.C.N.J. 221 accords me a complete answer whereMahmud Mohammed, J.S.C. (as he then was) held:

“To say, as did the trial court and canvassed by the appellants in their arguments before this court, that objection to jurisdiction should only be taken after the filling of statement defence, is indeed a misconception. This entirely depends on what materials were available. Objection to jurisdiction could be taken on the basis of the statement of claim as in Izenkwe v.Nnadozie (1953) 14 W.A.C.A. 361 at 363; Adeyemi v. Opeyeri (1976) 9-10 S.C 31 and Kasikwu Farms Ltd. v. Attorney-General of Bendel state (1986) 1 N.W.L.R. (pt. 19) 695. It could be on the evidence received as was the case in Barclays Bank of Nigeria  v. Central Bank of Nigeria (1976) 1 All N.L.R. 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed as in National Bank (Nigeria) Ltd. v. Shoyeye (1977) 5 S.C. 181 at 194. In fact it could be taken even on the face of writ of summons before filing statement of claim. See Attorney-General Kwara State v. Olawale (1993)1 N.W.L.R. (pt. 272) 645 at 675 and the recent decision in Arjay Ltd. v. Airline Management Support Ltd. (2003) 7 N.W.L.R. (pt. 820) 577 at 601 where Onu, J.S.C. was confronted with the issue of raising preliminary objection on jurisdiction before a Federal High Court before filing a statement of claim as required by Order xxvii, of Federal High Court Rules Cap. 134, Laws of the Federation of Nigeria, 1990, had this to say:

“I agree with the appellants to the effect that the preliminary objection challenged the jurisdiction of the trial court to entertain the action. This is not a demurrer application in which case there should be a statement of claim in place, the facts which the appellants would be required to admit before bringing their objection. I agree with the appellants’ submission that there is a difference between an objection to jurisdiction and a demurrer. I agree with them that an objection to the jurisdiction of the court can be raised at any time; even when there are no pleadings filed and that it can be brought under the inherent jurisdiction of the court. Thus, for this reason, once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand”

 

Next is the contention of the Claimants that the 7th Defendant did not support his prayers with sufficient depositions in the affidavit in support of this application. It is true that applications of this nature are fought on affidavit evidence and the facts deposed to in the affidavit constitute evidence. The question here is does the affidavit in support of this application disclose enough facts to support the prayers sought by the 7th Defendant? This is a question of fact to be answered by comparing the reliefs on the one hand and the depositions on the other. I have taken a careful look at the reliefs and the depositions and I agree with the 7th Defendant that paragraphs 3-7 of the affidavit are enough to sustain this application and I so hold.

 

The 7th Defendant applied for an order striking out its name for failure of the Claimants to plead facts showing compliance with mandatory conditions precedent to making a claim against it and failure to disclose any cause of action against it. I have indicated earlier that I would treat the two (2) issues together. The reason is simple. The issues are different side of the same coin. My understanding of the facts which the 7th Defendant considers a conditions precedent are facts which if the Claimants have pleaded will give them a cause of action against the 7th Defendant. I don’t consider it a condition precedent in the strict sense of it as a pre-action notice as the Claimants wanted me to believe. The confusion is however understandable given the fact that “condition precedent” is not a product of the Employees Compensation Act, 2010 but an import by the 7th Defendant. Having said that, a consideration of the issue of lack of any cause of action will do justice to the two issues.

 

Now, a cause of action has been defined by courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for a remedy.  It includes all those things which are necessary to give a right of action and every fact which is material to be proved to entitle the plaintiff to succeed. See Patkun Industries Ltd. v. Niger Shoes Ltd (1988)5 N.W.L.R. (pt. 93) 138, Ibrahim v. Osim (1987)4 N.W.L.R. (pt. 67) 965; Bello v. A.G. Oyo State (1985) 5 N.W.L.R. (pt. 45) 828andUdoh Trading Co. v.Abere (2001) 5 S.C.N.J. 283.

 

It is settled law that to determine whether a suit discloses any cause of action, the court will restrict itself to the statement of claim without a recourse to statement of defence. See the cases of Aladegbeni v. Fasanmade (1988) 3 NWLR (Pt. 81) 129, Dantata v. Mohammed (2000) 5 S.C.N.J. 26and 7UP v. Abiola& Sons (2001) 6 S.C.N.J. 33-34to mention but a few. After a calm reading of the complaint, statement of facts and Witnesses Statement on oath in this case, I have not found any averment or deposition linking the 7th Defendant with the facts in issue. Apart from a passing mention of the 7th Defendant at the introductory stages, nowhere is the 7th Defendant referred to again in the pleadings of the Claimants. In fact even at the point of asking for exemplary damages the 7th Defendant is exempted. I am therefore in total agreement with the position of 7th Defendant that the Claimants have not pleaded what he termed “condition precedent” to wit; the fact that death of Constable Solomon I. Ebare was reported to it, there was any application for compensation thereof or the employers of the deceased Constable was a registered contributor to the fund (7th Defendant).

 

For all I am saying, the Claimants have woefully failed to show the existence of any cause of action against the 7th Defendant and the justice of the case will be better served if its application is granted. It is therefore ordered that the name of the 7th Defendant is hereby struck out.

 

The coast is now clear for the determination of this case against the 1st to 6th Defendants and in so doing I will adopt the two issues formulated by the Claimants, to wit:

  1. Whether the Claimants had by credible evidence established their case against the Defendants for this Honourable Court to grant their reliefs.
  2. Whether failure of the Defendants to file their respective processes in court is fatal to their case.

 

I will however begin with the second issue first and in doing that, I will consider the effect of the failure of the Defendants to file any defenceto this suit.It is true that the Defendants did not enter any formal appearance, file any defence and did not have any legal representation throughout the hearing of this case in spite of been put on notice at any given time. It is also equally true that under this circumstance, the Defendants are presumed to have admitted the case made against them and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the Claimant. See the case of Ifeta v. Shell Petroleum Development Corporation of Nigeria Ltd (2006) Vol.6, MJSC 123. However, the absence ofevidencebythedefendantdoesnotabsolvetheclaimantoftheburdenofproofplacedonhimby Section 131 (1) & (2) of the Evidence Act, 2011. See Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt 1057) 218.Lack of evidence or defence per se does not guarantee automatic victory to the claimant since evidence does not become credible merely because it is unchallenged. See Akalonu v. Omokaro (2003) 8 NWLR (Pt 821) 190.So it is still incumbent on the Claimant to adduce credible evidence to prove his case, albeit, on minimum proof. The doctrine of minimum is captured eloquently by A. M. Mukhtar, J.S.C. (as she then was) in the case of Newbreed v.Erhomosele (2006) 2 S.C.N.J. 215:

“The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, minimum evidence adduced by the other side would suffice to prove its case. See Buraimoh v.Bamgbose (1989) 3 N.W.L.R. (pt. 109) page 352, and Nwubuoku v. Ottih (1961) 2 S.C. N.L.R. page 232.”

 

So it is my finding that in spite of the failure or neglect of the Defendants in filing any defence or representation in this case, is not fatal as posited by the Claimants, but detrimental to the case of the Defendants in that the standard of proof required of the Claimants is watered down.

 

This now takes me to the first issue which is whether the Claimants had by credible evidence established their case against the Defendants for this Court to grant their reliefs. Going by the doctrine of minimum evidence, I will answer in the affirmative. The Claimants have shown that Constable Solomon I. Ebare was enlisted into the Nigerian Police Force in September, 2003 with Force no. 413060. It is also in evidence that Constable Solomon I. Ebare was shot on 17th December, 2010 by the 1st Defendant on their way to perform the parade in honour of a deceased Inspector of Police. The death of Constable Solomon I. Ebare was also confirmed by a Death Certificate (exhibit CW. 1). It is also on record that Constable Solomon I. Ebare is survived by the children, 1st, 3rd and 4th Claimants. All these goes to show that the Claimants are entitled compensation from the Defendants. I find that the defendants have refused or/and neglected to pay to the claimantstheirlatefather’sdeathbenefitsinspiteofalltheeffortsmadebythem.

 

The question which arises is what manner of compensation and under which law? The Claimants had indicated in their written address that reliefs sought in the case is based on section 17 (1) a (i) &(c) of the Employee’s Compensation Act, 2010. This is further reinforced by including the erstwhileNational Social Insurance Trust Fund Management Boardas the 7th Defendant. Apart from this, there is no pleading or evidence to show that the suit is coming under the Act. No evidence of registration with the Board by the 4th, 5th and 6th Defendants, no payments by them of the mandatory 1% monetary fees to the Board or any application for compensation to the Claimants thereof.All these actions or procedures are supposed to be done by the 4th, 5th and 6th Defendants who are employers of the late Constable Solomon I. Ebare. For reasons best known to the Defendants the compensation of the deceased was not pursued under the Employees Compensation Act and leading to the name of the Board been struck out as 7th Defendant. The implication of this is that the Claimants are free to pursue the compensation from the Defendants after all the Act has given the Claimants that option under section 12 of the Employees Compensation Act, 2010. See the case of Amina Hassan v. Airtel Network s Ltd &anorunreported Suit No. NICNILA/471/2012 the ruling of which was delivered on 11thFebruary 2015 by His Lordship Hon. Justice B. A. Adejumo, PNICN, relying on Femi Aborisade’s “Reflections on Employees’ Compensation Act, 2010” in Bimbo Atilola (ed.) – Themes on the New Employees’ Compensation Act (Hybrid Consult), 15thEdition, 2013 at page 35.

 

Similarly, MichealDugeri, a Lagos based Legal Consultant and blogger, while responding to questions on his paper titled “Employee’s Compensation Act, 2010: Issues, Prospects and Challenges” opined on a similar scenario as follows:

“The challenge however, would arise where the employer is not registered with the NSITF or has not been making the annual payments. In the circumstance, the employer would be compelled to pay the compensation from their account.”

He went further to say:

“Kindly note that an injured employee can institute an action in court for compensation against workplace injuries if the employer decides not to involve the NSITF. Most employers not already registered with the NSITF would rather shy away from claiming compensation from the Scheme on behalf of their injured employees, in which case the aggrieved employee would have to approach the court for compensation.”

 

Assuming I am wrong on the above score, I still feel there is no way the Defendants canbe absolved from being liable for the payment of compensation for the death of Constable Solomon I. Ebare. Be it under the Employee’s Compensation Act, Common Law, Negligence or no known applicable law at all, the Defendants have committed a wrong and are liable to pay compensation. I will take judicial refuge in the principle of law that it is not necessary that a cause of action must fall under a known head of tort; merely showing that a wrongful act is committed is enough. See case ofLabode v.Otabu (2001) 3 S.C.N.J. 25,where S. U. Onu, J.S.C held:

“It must be stressed from the onset that a statement of claim did not disclose that the appellant instituted her action in detinue. Neither did she present herself as a pledgor trying to recover a property pledged by her. What is important is simply the presentation of the factual situation which if substantiated entitles the appellant to a relief against the respondent…  For once there is a wrong there must be a remedy. A wrong must not necessarily be remediable under a known head of tort before it is justiciable. See the exhaustive treatment of this issue by this court in the celebrated case of Aliu Bello &ors v. Attorney-General of Oyo State (1986)5 N.W.L.R. (pt. 45) 828 where Bello, J.S.C., as he then was, explained the correct meaning of the word “wrongful” as stated by Brown, L.J. in Mogul v. Mcgnegor 23 GBC 598 at 612 to 613.”

 

Similarly, a party is not to be denied any relief merely because he sought it under the wrong rule of court, law or statute. My lord,Walter S. N. Onnoghen, J.S.C. (as he then was, now CJN) inForestry v. Gold (2007) 5 S.C.N.J. 321, put this beyond reproach:

“From the above, it is very clear that even though the court held that the trial court erred in applying a federal statute instead of that of a state, the main reason for allowing the appeal was that the case for the application of the provisions of the Public Officers Protection Act was not made out and that the trial court was consequently in error when it rule that the action was statute barred. I hold the further view that if the case for the application of the provisions of the Public Officers Protection Act, had been found to have been made out, the court would have proceeded, in the interest of doing substantial justice to apply the appropriate law to the facts of the case, despite the fact that the respondent relied on a wrong law in presenting his case and the trial judge in arriving at its decision. It is settled law a party is not to be denied any relief to which he is entitled merely because he sought the relief under the wrong rule of court or law/statute – see Bello v. A.G. of Oyo State (1986) 5 N.W.L.R. (pt. 45) 828 at 876, Falobiv. Falobi (1976) 1 N.W.L.R. 169.”

               

The long and short of it is that the Claimants are entitled to all the reliefs except for number 5 which seeks an order directing the Defendants to compute and pay the claimants, all the entitlements due to the deceased, had the deceased outlived the thirty five (35) years of service. This is because an employer does not guarantee a job to an employee until the employee’s retirement age and the time stipulated for retirement only set out the maximum duration possible for the employment. Consequently, the Court will not grant a claim for payment of salary or entitlement up to the retirement age of the employee. See the case ofOkeme v. Civil Service Commission, Edo State (2000)14 NWLR (Pt. 688) CA.

 

In the light of the foregoing, I herebydeclare the continuous withholding by the Defendants of the Claimants’ entitlements without just cause is wrongful, null and void and a deliberate attempt to cause the claimants untold hardship and therefore order as follows:

  1. A monthly payment of sum equal to 90 percent of the total monthly rate of compensation.

 

  1. Monthly payments to eligible children up to the age of 21 or until they complete undergraduate studies whichever comes first.

 

  1. An Order directing the Defendants to pay the 1st, 3rdand 4th Claimants the sum of or such other sums as shall be calculated to be due to the claimants such as:
  2. a)The payment of the statutory five hundred thousand naira (N500,000.00) only.
  3. b)Life Assurance calculating at N1,350,000.00 (One Million, Three Hundred and fifty thousand naira) only.
  4. c)Nigeria Police Welfare fixed at N100,000.00 (One Hundred Thousand Naira) only.
  5. d)Police Pensions Fund Administrative: Gratuity.

 

  1. And the sum of Five Million Naira (N5,000,000.00) only as exemplary damages against the 1st, 2nd, 3rd, 4th and 6th Defendants.

 

All computations and payments are to be made within 90 days from the date of this judgement.

 

Judgment entered accordingly.

 

 

………………………………………

 

HON. JUSTICE M. A. NAMTARI

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