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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP: HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: October 16, 2015 SUIT NO. NICN/LA/473/2014 BETWEEN 1. MR. MUJEEB SOKUNBI CLAIMANT/RESPONDENT AND 1. EKO ELECTRICITY DISTRIBUTION COMPANY DEFENDANTS/ 2. NATIONAL ELECTRICITY LIABILITY MANAGEMENT LIMITED APPLICANTS REPRESENTATION Tunde Okunola, holding the brief of Adesina Ogunlana for the claimant Oladimeji Sarumi, with Zainab Abiola (Miss) for defendants. RULING The claimant filed this complaint against the defendants on the 15th October 2014 seeking the following reliefs: 1. A declaration that the defendants are responsible for the claimant’s grievous bodily injuries medically diagnosed as Quadipeosis and Kyphosis causing the claimant severe permanent disability since 2011. 2. A declaration that the claimant’s severe permanent disability compels his dependence on others for the ordinary and common runs of life, a humiliating, devastating, traumatizing, steeply expensive, complicated, unsafe, unduly vulnerable, tortuous and unproductive experience of a life time duration. 3. An order that the defendants pay the claimant the sum of three hundred million naira as compensation for their negligence which has permanently disabled the claimant in the form of Quadipeosis coupled with Kyphosis since 2011. The defendants entered a conditional appearance on 17th November, 2014 and thereafter on the 27th January 2015 filed a Motion on Notice pursuant to Section 5 of the Arbitration and Conciliation Act, Cap A18, LFN, 2004 and Order 11(1) of the Rules of Court seeking the following: 1. An order of this Honourable Court dismissing and/or striking out this suit in limine and declining jurisdiction to entertain and adjudicate thereupon on the ground that the suit discloses no cause of action whatsoever against the applicants; or in the Alternative 2. An order of this Honourable Court staying proceedings in this suit pending the determination of the dispute (if any), subject matter of this suit, by Arbitration; 3. And for such further order or orders as the court may consider appropriate to make in the circumstances of this suit. The grounds upon which the application is made are as follows: 1. The respondent, a former employee of Power Holding Company of Nigeria (PHCN) instituted this suit vide a complaint form dated 15th October, 2014, seeking several declaratory reliefs, inter alia, “A declaration that the defendants are responsible for the claimant’s grievous bodily injuries’. 2. The respondent avers that he, “while on official duty of the 1st defendant, sustained a serious spinal cord injury…” and the 2nd applicant “paid him fifteen million naira in May, 2014 as compensation upon the execution of a tripartite agreement including the claimant (represented by Counsel), the 1st and 2nd defendant” 3. Article D of the Settlement Agreement states that “the parties have decided to enter into this MOU as full and final settlement of all obligations or liabilities” 4. Article 4 of the Settlement Agreement further states that “the claimant has instructed that the sum of N15,000,000.00 be paid into his Counsel’s account, Adesina Ogunlana Esq of Winners Don’t Quit Chambers..” 5. By Article 5 of the Settlement Agreement, parties agreed that “by the payment of the sum of N15,000,000.00 (Fifteen Million Naira) paid to the claimant, both NELMCO and Eko Disco and or any of its predecessor or successor companies shall be absolved of any further financial, legal and or any other responsibilities. 6. By Article 6 of the Settlement Agreement, parties agreed that “no legal claims or suit and or any other claim and or suit for that matter shall be made against NELMCO or Eko Disco arising or in connection to the said matter and or any other matter for that matter” 7. Article 7 of the Settlement Agreement stipulates that “this Memorandum of Understanding constitutes a legal and binding agreement and is intended to constitute the complete and entire agreement between the parties with respect to the settlement sum hereof and expressly supersedes any and all prior oral or written negotiations or agreements between the parties hereto with respect to the subject matter hereof” 8. The Supreme Court in the case of Larmie & 1 Other V. D.P.M.S Ltd [2005] 18 NWLR (Pt. 958) 438 held that: The law is trite regarding the bindingness of the terms of the agreement of the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This court, and indeed any other court would not allow anything to be read into such agreement, terms on which the parties were not in agreement or where not ad idem. 9. The Settlement Agreement also includes a Dispute Resolution clause which provides that “any dispute, controversy or claim arising out of or in relating to this agreement or the breach, termination or invalidity thereof shall be finally settled by arbitration, in accordance with the Arbitration Rules set out in the 1st Schedule to the Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria, 2004 (the Arbitration Rules”). Such dispute, controversy or claim shall be submitted to arbitration at the request of either party upon written notice to that effect to the other party in accordance with the Arbitration Rules”. 10. The Court of Appeal in the case of L.S.W.C V. Sakamori Const. (Nig) Ltd [2011] 12 NWLR [Pt. 1262) 569 held that: It is well settled that where parties have chosen to determine for themselves that they would refer any of their dispute to arbitration instead of resorting to regular courts, a prima facie duty is cast upon the courts to act upon their agreement. The courts should not be seen to encourage the breach of a valid arbitration agreement voluntarily entered into by the parties. The Motion is supported by affidavit sworn to by Taofik Adeleke and a written address. In opposition, the claimant filed a counter affidavit which was sworn to by Akinyemi Adetunji a Lawyer on 27 February 2015 and a written address. The defendant filed a further affidavit and a reply on points of law on 25th March, 2015. The parties adopted their addresses. Learned counsel to the defendants raised the following issues for determination as follows: 1. Whether this suit, all the facts and circumstances considered, discloses any cause of action whatsoever against the applicants, thereby robbing the court of jurisdiction to entertain and adjudicate upon the matter hereof. ALTERNATIVELY 2. Whether this court can assume jurisdiction to entertain this suit, considering the existence of the Arbitration Clause contained in the Settlement Agreement executed by the parties herein and consequently whether this court ought not to stay its proceedings in this suit pending the determination of the dispute (if any), subject matter of this suit by arbitration” Learned counsel submitted that in view of the terms of the settlement agreement executed by the parties the claimant cannot substantiate any cause of action against the defendant. He referred to the settlement agreement (exhibit PUC1) executed by the parties on the basis of which the sum of Fifteen Million Naira (N15,000,000.00) was paid to the claimant and Articles D, 4, 5, 6 and 7 of the settlement agreement. It was his submission that it is clear that the parties have agreed on sufficient and adequate compensation for the injuries sustained by the claimant on the basis of which the defendants have paid the sum of N15,000,000.00 to the claimant in full and final settlement of all obligations or liabilities. That the settlement agreement reveals that the claimant agreed that by the payment of the sum, the defendant’s and their predecessors or successors shall be absolved of any further financial, legal or other responsibilities. He submitted that parties are bound by the terms of their agreement citing Larmie & 1 Other v D.P.M.S Ltd [2005] 18 NWLR (Pt. 958) 438. Counsel stated that claimant has agreed to N15,000,000.00 as full and final compensation for his injuries and to claim otherwise would be unfair and unreasonable to the defendants as this would amount to double compensation. He argued that the claimant cannot orally and unilaterally change, vary or alter the terms of the settlement agreement relying on section 128 of the Evidence Act. Arguing the alternative issue, he submitted that this court is not the proper forum for the claimant to seek redress. He referred the court to paragraph 15 of the statement of facts wherein the claimant admitted he was paid 15 Million Naira in May, 2014 as compensation upon the execution of a tripartite agreement including the claimant, the 1st and 2nd defendants. He submitted that the settlement agreement executed by all the parties includes an arbitration clause which states inter alia that any dispute, controversy or claim arising out of or relating to the agreement or the breach, termination or invalidity thereof shall be finally settled by arbitration in accordance with Arbitration and Conciliation Act Cap A18 LFN 2004 referring to Section 5 of the Arbitration and Conciliation Act, L.S.W.C V. Sakamori Const. (Nig) Ltd [2011] 12 NWLR (Pt.1262) 569, Ogunwale V Syrian Arab Republic [2002] 9 NWLR (Pt. 771) 127. He further submitted that in view of the fact that the settlement agreement incorporates an arbitration clause, the condition precedent to the invocation of this court’s jurisdiction has not been complied with and therefore this suit is premature. He urged the court to decline jurisdiction to entertain this suit and dismiss the suit in its entirety. Learned counsel to the claimant raised two issues for determination by this court as follows: 1. Does the claimant/respondent have a cause of action in this suit? 2. Does the court have the jurisdiction to entertain this suit? He submitted that a cause of action is the entire set of circumstances giving rise to an enforceable claim. That it is the fact or combination of facts which gives rise to a right to sue and consists of two elements, the wrongful act of the defendant which gives the claimant his cause of complaint and the consequent damage. He cited Adesokan V Adegorolu [1997] 3 NWLR (Pt. 493) 261, Ajayi V. Mil. Adm Ondo State [1997] 5 NWLR (Pt. 504) 237, Rhein Mass Und See GMBH V. Rivway Lines Ltd [1998] 5 NWLR (Pt. 549) 265, Emiator v Nigerian Army [1999] 12 NWLR (Pt. 631) 233. He stated that the claimant’s case is that he received N15,000,000.00 for the treatment of the injury he sustained due to the negligence of the defendants and that his medical condition has now been diagnosed and certified as untreatable thereby rendering him to a life of permanent incapacitation. He argued that what the defendant has paid in full and final settlement is for treatment of the claimant’s injury and not the much more disastrous condition of permanent incapacity due to the medical condition of Kyphosis. He submitted that the negligence of the defendant is in two parts; the first is allowing the injury to occur at all and secondly, causing undue delay in the provision of funds for medical intervention which led the injury to degenerate into permanent incapacity. Counsel submitted that the argument of the defendants that the arbitration clause in the settlement agreement precludes the claimant from bringing this action as untenable. He submitted that the arbitration clause is null and void for its intendment and purport is the ousting of the jurisdiction of the court to entertain this matter or to place the court below the Arbitration Panel. He further submitted that this instant dispute before the court does not arise from the settlement agreement; that it is about compensation being demanded for permanent disability of a grievous nature due to the defendants’ negligence. He submitted that the claimant has a reasonable cause of action and that there are substantial issues to be tried and determined. He urged this court to dismiss this application. Replying on points of law, counsel to the defendants submitted that paragraphs 7, 10 and 11 contravene Section 115(1) and (2) of the Evidence Act, 2011 as they are conclusions, legal arguments and not facts which have no place in an affidavit. He cited I.T.N.A.G.P.P.E v P.C.N [2012] 2 NWLR (Pt. 1284) 262, Bamaiyi V. State [2001] 8 NWLR (Pt. 715) 270, Fed. Mil. Govt. V. Sani (No.1) [1984] 4 NWLR (Pt. 117) 624, NIPSS v. Osigwe [2008] 6 NWLR (Pt. 1083) 239. He submitted that the claimant is estopped from denying the purpose the sum of N15,000,000.00 was for referring the court to section 169 of the Evidence Act, A-G Rivers State v. A-G Akwa Ibom State [2011] 8 NWLR (Pt. 1248) 31. He submitted that the court’s only duty is to interpret the intentions of the parties as embodied in the document citing Okogie v Epoyun [2010] 11 NWLR (Pt. 1206) 456. I have carefully considered the processes filed, the submissions of counsel and the authorities relied upon. I will begin with the issue of whether the claimant has established a cause of action against the defendant. A cause of action is a combination of facts and circumstances that establish or give rise to a right of action. It is a factual situation that entitles a person to judicial relief. See P.N.Udoh Trading Coy v Abere [2001] 5 SC (Pt ii) 64, A-G Federation v A-G Abia & 35 States [2001] FWLR (Pt 64) 202. There must be lis inter partes, an existing controversy between the disputants. It is not in dispute that the claimant sustained a serious injury in the course of his employment. It is also not in dispute that upon the execution of a tripartite agreement (exhibit PUC1) on 11th November 2014 between the defendants and the claimant who was represented by his counsel, the defendants paid the claimant through his counsel the sum of Fifteen Million Naira. These facts have been pleaded by the claimant in paragraph 15 of the statement of facts. However, it is pertinent to reproduce the relevant clauses of the settlement agreement as follows: FURTHER TO THE ABOVE, THE PARTIES HEREBY AGREE as follows: 1. That following various discussions between the parties on the appropriate compensation of the claimant to treat the injury sustained during his execution of lawful duties the parties have agreed on an amount that will constitute full and final settlement of all claims. 2. The claimant unilaterally and unequivocally has agreed that N15,000,000 will suffice for this purpose. 3. The parties have agreed that the sum of N15,000,000 (Fifteen Million Naira) shall be paid to the claimant through his counsel; WDQ Chambers as full and final payment due from NELMCO and or Eko Disco ( or any predecessor and or successor company) to the claimant. This amount is to constitute full and final settlement of all claims from the claimant to NELMCO and/or Eko Disco. 4. The claimant has instructed that the sum of N15,000,000 be paid into his Counsel’s Account Adesina Ogunlana Esq of Winners Don’t Quit Chambers, 185 Ikorodu Road, Palm Groove, Lagos State, & Account Number: 5. That by the payment of the sum of N15,000,000 (Fifteen Million Naira) paid to the claimant, both NELMCO and Eko Disco and or any of its predecessor or successor companies shall be absolved of any further financial, legal and or any other responsibilities. 6. That no other legal claims or suit and or any other claim and or suit for that matter shall be made against NELMCO or Eko Disco arising or in connection to the said matter and or any other matter for that matter. 7. That this Memorandum of Understanding constitutes a legal and binding agreement and is intended to constitute the complete and entire agreement between the parties with respect to the settlement sum hereof and expressly supersedes any and all prior oral or written negotiations or agreements between the parties hereto with respect to the subject matter hereof. I find that the claimant having obtained the sum of Fifteen Million Naira in full and final settlement of all claims (underlining mine) arising or in connection with his injury has no basis for instituting this suit. It is the law that parties are bound by the terms of the agreement they sign. The claimant is bound by the terms of the agreement entered into on his behalf by his Legal Counsel WDQ Chambers and signed by Adesina Ogunlana his counsel. I hold that the claimant has no cause of action against the defendants as the cause of action was extinguished when the settlement agreement was executed and the sum of Fifteen Million Naira (N15,000,000.00) was received. Furthermore, I hold that the arbitration clause in the settlement agreement is a condition precedent for the activation of the jurisdiction of this Court. This ruling will be incomplete without a comment on the conduct of the claimant’s counsel Mr Adesina Ogunlana. The records of the court show that he was the Solicitor who represented the claimant during the negotiations leading up to the settlement agreement (exhibit PUC1). He understood the terms of the settlement agreement, its legal effect and consequences. He signed the agreement on behalf of the claimant who is permanently incapacitated and the sum of Fifteen Million Naira (N15,000,000.00) was paid to him. Perhaps because of certain considerations, Mr Adesina Ogunlana has forgotten that as a lawyer there is a code of conduct which he must keep to. In this regard, he should bear in mind the words of Lord Denning MR in the case of Rondel v Worsley [1967] 1 QBD 443 wherein he stated as follows: Counsel as an advocate is a minister in the temple of justice, he must not consciously misstate facts, he must keep to his code of honour, if he breaks it he is offending against the rules of the profession and is subject to its discipline. He filed this complaint for the claimant and by this action has given the claimant a false hope knowing fully well that the action was dead on arrival because there is no existing dispute between the parties having collected the sum of Fifteen Million Naira in full and final settlement of all claims. It is against the code of conduct of the Legal Profession for Mr Adesina Ogunlana to turn around and file this action. The Legal profession is a respectable honourable profession. The Bar is not just a trade or business or an avenue for making money quickly. It is my view that this is a proper case requiring disciplinary sanctions by the Legal Practitioners Disciplinary Committee upon a report being made about the conduct of Mr Adesina Ogunlana. I decline jurisdiction to entertain this suit. It is hereby dismissed in its entirety. Each party is to bear its costs. Ruling is entered accordingly. _____________________________ Hon. Justice O.A Obaseki-Osaghae