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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 6TH MAY, 2014 Suit No. NIC/ABJ/218/2013 BETWEEN LOT MATHIAS YADUMA CLAIMANT AND KEYSTONE BANK PLC DEFEDNANT REPRESENTATION S. S. Mschellia Esq for the Claimant. Dr. Soni Ajala Esq with Ikechukwu Ekene Esq and Obinna Ugwu for the Defendant/Applicant. RULING/JUDGMENT The claimant brought this action by way a complaint dated and filed on 28th of August, 2013. The claimant is praying the court for:- i. AN ORDER directing the defendant to immediately pay the plaintiff the sum of N8,899,830.44 being benefits accruing to him. ii. The sum of N15,000,000.00 as General Damages. iii. Cost of this suit assessed at N350,000.00 The complaint is accompanied with the claimant’s statement of facts, witness statement on Oath, lists of documents to be relied upon and list of witnesses. In reaction the defendant on the 13th of September, 2013 entered a memorandum of appearance filed on the same date. Thereafter, by a deeming Order the defendant filed its statement of defence, list of witnesses and list of document to be relied upon. On the 11th of December, 2013 the defendant filed a notice of preliminary objection to the jurisdiction of this court to entertain this suit, seeking the following reliefs:- 1. AN ORDER of this Honourable Court dismissing this suit in its entirety against the defendant/applicant. 2. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstance of this case. The grounds of objection are:- 1. That this court lacks the jurisdiction to entertain this suit for the following reasons; 2. That there is no cause and/or reasonable cause of action disclosed by the claimant against the defendant. 3. That the defendant is not a person known to law. 4. That the suit of the claimant is grossly incompetent. In support of the preliminary objection is an 8 paragraphs affidavit deposed to by Ikechukwu Ekene Esq a counsel in the law firm of Deeplaw Associates, counsel to the defendant/applicant. A written address in support of the Motion is also attached. The claimant/respondent reacted filing a 3 paragraph counter-affidavit sworn to by Mshellia Samuel Surhyel, the legal Practitioner to the claimant/respondent. In support of the counter-affidavit is a written address. The preliminary objection was moved on the 15th of March, 2014 by the learned counsel for the applicant adopting the written address, wherein two issues were raised in the application for determination:- i. Whether from the totality of the averments of the claimant as contained in the statement of facts, the claimant has disclosed any cause and/or reasonable cause of action against the defendant/applicant. ii. Whether considering the affidavit in support of this application particularly paragraph 6 thereto, this suit is maintainable against the defendant. Counsel submitted in issue one that by way of commencement in respect of issue number one as above formulated, counsel commended this Honourable Court to the decision of the Supreme Court in the case of Military Governor in Ondo State & Ors V James Olagunju Kolawole & Ors (2008) 35 NSCQR P. 506 @ P. 534 where the court per F.F Tabai JSC held thus on the meaning of the term cause of action:- Cause of action ….. means that which makes an action possible …. In Akilu V Fawehinmi (No. 2) (1998) 2 NWLR (Pt. 102) P. 122 @ 169, this court per Karibi Whyte JSC spoke of the pharse thus; “Cause of action has been held to mean every fact which is material to be proved to entitle a plaintiff to succeed, or all those things necessary to give a right in law or equity”. And in Amodu V Amode (1990) 5 NWLR (Pt. 150) P. 356 @ 367 this court quoted with approval its definition in Hernaman V Smith (1855) 10 Exch. 659 @ 666 thus; The term cause of action means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third party. It is clear from the above definitions which I adopt that it is the totality of the factual situations the phrase cause of action. Counsel then submitted that in view of the above definition of the phrase/term “cause of action” by the Supreme Court he commended this Honourable Court to the GENERAL FORM OF COMPLAINT and the entirety of the averments of the claimant in his statement of facts so as to determine whether or not any cause of action has been disclosed by the claimant against the defendant/applicant consistent with the decision of the Supreme Court in the case of Abuakar V Bebeji Oil Ltd (supra) where the court at page 1675 held thus:- It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a court should look at are the writ of summons and the averments in the statement of claim, for it is by examining them that a court can satisfy itself on the actual grouse of a party and the remedy and the relief it is seeking from the court. Counsel further submitted that before proceeding to comment or make a submission as to whether or not the statement of claim of the claimant has disclosed any cause/reasonable cause of action against the defendant/applicant. That in the interest of justice and clarity, crave the kind indulgence of the court to reproduce hereunder averments as contained in paragraphs 1, 3, 4 and 5 of the said statement of facts which are the major plank of the claimant’s suit. 1. The claimant is a Nigerian Citizen and was offered employment by the defendant then known as Habib Bank Plc. The said letter of appointment dated 18th August, 1989 is hereby pleaded and will be relied upon at the trial. 2. The claimant further avers that pursuant to the merger of Platinum Bank Plc and Habib Bank Plc, he was transferred to Consolidated Business Support Services Limited by a letter dated 17th February, 2006. 3. The claimant state that pursuant to the consolidated mention in paragraph 3 above, staff of Habib Bank Plc were supposed to have been paid their benefits and thereafter issued fresh appointment letters but this was not done. 4. That claimant avers that on the 3rd of January, 2008 when he resumed for his normal daily function with the Bank, he was called upon and shown an email message on the Bank’s System instructing him to resign form the Bank. This he did by a letter dated 3rd January, 2008. Counsel said from the above averments of the claimant, the most likely question to be raised in that regard is; do the averments in these paragraphs of the claimant statement of fact disclose any scintilla of cause of action against the defendant/applicant that came into existence in 2011? Counsel further said assuming though not conceding that the said paragraphs disclosed any cause of action against the defendant, the next issue or question to be considered is whether such cause of action so assumed to have been disclosed by the paragraphs of the statement of facts is reasonable in the contemplation of the settled principle of law as adumbrated above on what constitute ‘reasonable cause of action’. This therefore, takes us to the meaning of the term ‘reasonable cause of action’ as proffered by the Supreme Court in the case of Shell V X. M. Federated Ltd (2006) 27 NSCQR P. 127 @ 137 where it was held per I. F. Ogbuagu JSC thus:- I wish to state that it has been firmly settled in a line of decided cases of what “a reasonable cause of action” means. In the case of Dr. Irene Thomas & Ors V the most Rev. Olufosoye (1986) 1 NWLR (Pt. 18) P. 669 @ 682 that the term was defined as a cause of action with a chance of success. (Emphasis supplied) Counsel said from the paragraph of the statement of facts reproduced above, that no cause of action was therein disclosed at all by the claimant against the defendant/applicant let alone the disclosure of a reasonable cause of action by the claimant against the defendant/applicant. The claimant admitted that he resigned form the defunct Platinum, Habib Bank Plc in 2008. The claimant failed to state any relationship howsoever between the defendant that came into distinct existence in 2011 with his defunct former employer - platinum Habib Bank Plc. In urging this court to dismiss this suit against the defendant/applicant on the ground of lack of cause of action against the defendant, counsel referred this court again to the case of Ladejobi V Oguntayo (2004) 19 NSCQ P. 1 @ P. 18 where the Supreme Court held thus:- A suit is aimed at vindication of some legal rights. The existence of the legal rights is thus an indispensable prerequisite of initiating any proceedings in court of law. In other words, they must be recognized under the law a factual situation the existence of which will entitle one person. (Emphasis supplied) That in the regard of the above decision of the apex court, the claimant having totally failed to disclose any cause of action against the defendant have also failed to establish any legal right he has got against the defendant/applicant and as such, he lack the indispensable prerequisite to institute this suit against the defendant/applicant. Further still, the learned counsel submitted that from the totality of the averment in the claimant’s statement of facts discloses, no cause of action has accrued to the claimant against the defendant in consonance with the decision in the Supreme Court case of Military Governor of Ondo State & Ors. V Kolawole & Ors. (2008) 35 NSCQR P. 507 @ 535. Accordingly, this suit should be dismissed against the 3rd defendant/applicant. See also the recent case of Senator Yakubu Lado & 42 Ors V Congress of Progressive Change (CPC) & 53 Ors (2011) 12 SC (Pt. 111) 62. The learned counsel urged the court to resolve issue one in favour of the defendant and so hold. The learned counsel submission on issue two he added that a glance at the name of the defendant sued herein shows that the defendant is a person not known to law and therefore not capable of being proceeded against. The claimant brought to the law and that being the case, that it is only a natural or juristic person that can sue or be sued. See the case of the ADMINSTRATORS/EXECUTORS V SAMUEL DAVID EKE-SPIFF AND 3 ORS. (2009) 37 NSCQR P. 364 @ P. 393. He contended that ‘Keystone Bank Plc is neither a legal entity nor a juristic person that can sue or be sued. See the case of BANK OF BARODA V IYABALANI COMPANY LTD (2002) 11 NSCQR P. 498 @ P. 514. Furthermore, counsel submitted that the defendant in this suit, as is very glaring is incapable of being proceeded against. He referred to the case of Shittu V Ligali (1941) 16 NLR 21. The learned counsel further submitted that it is settled law that only natural persons, that is, human beings and juristic or artificial persons who possess separate legal personality upon incorporation are competent to sue and be sued. Section 38(1) of the Companied and Allied Matters Act 1990 (CAMA) empowers all companies that are duly incorporated under CAMA for the furtherance of its authorized business or objects, to have all the powers of a natural person of full capacity and this includes power to sue and be sued. That ‘Keystone Bank Plc’ is neither a human being nor a juristic person, or a legal entity and accordingly can neither sue nor be sued. It is trite that something cannot be placed on nothing and it will be expected to stand. On this counsel referred to the authority of UAC V McFOY (1961) 3 AER, 1169 per Lord Denning at Page 1172. Against the foregoing, the learned counsel prayed this Honourable Court to dismiss this action. In conclusion, the learned counsel urged this Honourable Court to dismiss this action in its entirety on the ground that the suit of the claimant is incompetent and thus is incapable of evoking the jurisdiction of this court and commended this court to the fundamental nature of jurisdiction as was decided by the Court of Appeal in the case of Ibori V FRN (Supra) @ Pg. 289, thus:- When a question of jurisdiction of any court over a matter is raised, it transforms into one which touches the competence of the said court against which it is raised. It is a fundamental and threshold issue. Proceedings and Judgments of a court which lacks jurisdiction over a matter is a nullity no matter how well conducted. He prayed that this action be dismissed for wanting in jurisdiction, competence, and the defendant sued being a non-existent legal entity and failure by the claimant to disclose any cause of action against the defendant to evoke the adjudicatory authority of this Honourable Court. The learned counsel for the claimant/respondent in answer to the issues formulated by the defendant/applicant rejected the submission of the defendant/applicant in its entirety. He stated that sometime in August, 2011, the operating license of Bank PHB was revoked along with two other banks by the Central Bank of Nigeria wherein the Central Bank established a bridge Bank. i.e. Keystone Bank Plc to take over and administer the asserts, deposits and liabilities of the defunct Bank PHB. He went further by stating the definition of what a bridge Bank is as made by Wikipedia an online directory as an institution or bank established or authorized to hold assets and liabilities of another bank, specifically insolvent banks. A bridge bank is charged with the continued operation of the insolvent bank until it becomes solvent or it is liquidated. It is the submission of the learned counsel for the claimant that the defendant/applicant in this case is a creature of the Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation and it been supervised by the Assets Management Corporation of Nigeria, which is its principal shareholder/creditor. He submitted further that this matter is one of the liabilities as enshrined in the enabling act. Consequently, counsel urged this court to hold that this application lacks. Having considered the issues raised by the applicant in the preliminary objection, the submissions of parties and authorities cited, the main issue for the court’s determination is:- 1. Whether this court lacks jurisdiction to hear and determine this case as it is presently constituted, having not disclosed any cause of action against the defendant. It is a fundamental principle that jurisdiction is the authority which court has to decide matters that are litigated before it. The issue of jurisdiction cannot be ignored. Whenever, it is raised it must be taken timeously. If a court proceeded and it was ultimately found that the court had no jurisdiction in the matter all the proceedings however, well conducted amount to nothing but a nullity. See Kato V CBN (1991) 19 NWLR (Pt. 214) 126. The law on this part has been graphically captured in the case of Madukolu V Nkemdilim (1962) NSCQ Vol. 2 Pg. 344 at 379; where the court laid down the condition precedents. The applicant’s counsel referred the court to the claimant’s averments in paragraphs 1, 3, 4, and 5 already reproduced above and argued that these paragraphs did not disclose any cause of action against the defendant/applicant. The Supreme Court in the case of Cookey V FOMBO (2005) 14 NWLR (Pt. 947) 182 defined a cause of action as:- The bundle of aggregate facts which the law recognized as giving the Plaintiff a substantive right to make the claim for the relief or remedy being sought. The factual situation on which the claimant relied to support his claim must be recognized by law as giving right to a substantive right capable of enforcement or being claimed against the defendant. If a statement of claim discloses a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligations of the defendant. It must then go on to set out facts constituting infraction of the plaintiff’s legal rights or failure of the defendant to fulfill his or her obligation. As a general rule whether or not a court can entertain a suit, it is the claimant’s claim that reference must be made to in order to find an answer. Adeyemi V Opeyeri (1976) 9 – 10 SC 31 at 49. The claimant’s statement of claim must be examined in the present case. The substance of the claim of the claimant is that the pursuant to the Manager of the Plantinum Bank Plc and Habib Bank Plc, he was transferred to Consolidated Business Support Services Ltd by a letter of 17th February, 2006 the staff of Habib Bank Plc were supposed to have been paid their benefits, and that this was done, for this he is claiming the sum of N8,899,830.34 from the applicant as his entitlement. He alleged further that he was instructed to resign from the Bank on the 3rd of January, 2008. Another claim of the claimant is that the defendant refused to pay him his entitlement which contravenes the collective agreement between the Nigerian Employers Association of Banks, Insurance and Allied Institutions and the National Union of Banks, Insurance and Financial Institutions of Employees. The facts and circumstances of this case having been pleaded and ascertained and as can been seen from the definition of cause of action, it must be decided upon two factors thus the defendant’s wrongful act and the consequential damage to the claimant. These two factors co-exist to constitute the cause of action before the court. It does not take account of whether the cause of action will succeed or fail. The cause of action is valid irrespective of the strength or weakness of the claimant case. From the fore going it seems to me that the claimant claim cannot be said to have a reasonable cause of action against the Respondent for the following reasons:- It is very doubtful whether the claimant dealt with the defendant as his employer. This doubt is very clear in that the claimant had resigned his appointment with Platinum Bank Plc and Habib Bank Plc on the 3rd of January, 2008. In other words, the claimant had ceased to be an employee of the Platinum Bank Plc and Habib Bank Plc since 2008. The defendant came into existence in 2011 that is 3 years after the claimant had resigned his appointment with the Platinum Bank Plc and Habib Bank Plc. The claimant has also not presented or shown to the court that after his resignation he was re-engaged by the Keystone Bank Ltd. There is no doubt that the claimant was a former employee of Habib Bank Plc and not the staff of Keystone Bank Ltd and there is no employer and employee relationship between the two parties. The Keystone Bank Ltd is also not privy into any collective agreement entered into by the Nigerian Employers Association of Banks, Insurance and Allied Institutions and the National Union of Banks, Insurance and Financial Institutions Employee. Therefore, the defendant is not bound by the agreement entered into in 2005. It is very clear that all the events narrated in the claimant’s statement of facts from his engagement, transfer and resignation took place before the Keystone Bank Ltd came into existence. It is for these reasons that I find that there is no cause of action against the defendant Keystone Bank Ltd. The claimant case is hereby dismissed. I will make no further comment on the other issues raised by the defendant/applicant in this preliminary objection. Ruling is entered accordingly. _____________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE