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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: JANUARY 14, 2016 SUIT NO: NICN/LA/30/2015 BETWEEN Arese Alonge - Claimant AND 1. Unity Bank Plc - Defendants 2. Henry James Semenitary REPRESENTATION Kemi Pinheiro, SAN with Damilola Olu-Aderounmu Mrs. & R. Ayanbiyi for the Claimant. Paul O. Eishemomoh for 1st & 2nd Defendants O. Olanisebe for Central Bank of Nigeria RULING The Claimant commenced this action by a General Form of Complaint on 11/2/15 and sought the following reliefs from the Court - a) A declaration that the purported termination of the employment of the Claimant by the 1st Defendant contained in the letter dated 14th January, 2015, is unlawful, null and void, invalid and of no effect whatsoever. b) An Order setting aside the 1st Defendant's purported letter of termination dated the 14th January, 2015 as unlawful, null and void, invalid and of no effect whatsoever. c) A declaration that the Claimant is a subsisting Executive Director of the 1st Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1st Defendant. d) An Order directing the 1st Defendant to effect payment of the monthly sum of =N=l,381,750.00 (One Million, Three Hundred and Eighty One Thousand, Seven Hundred and Fifty Naira Only) to the Claimant (excluding the months of January, April, July and October) commencing from 30th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1st Defendant to the Claimant as monthly basic salary, excluding other allowances, benefits and entitlements in every month exclusive of January, April, July and October. e) An Order directing the 1st Defendant to effect payment of the quarterly net monthly sum of N==2,194,666.00 (Two Million, One Hundred and Ninety-Four Thousand and Six Hundred and Sixty-six Naira Only) paid in the months of January, April, July and October to the Claimant commencing from 30th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1st Defendant to the Claimant as quarterly net salary, excluding other allowances, benefits and entitlements in every January, April, July and October. f) An Order directing the 1st Defendant to pay to the Claimant, the allowance, benefits and other entitlements due and or may become due and or continue to accrue to the Claimant with effect from 30th January, 2015 to the final determination of this suit, as set out hereunder: Special Damages PARTICULARS Upfront allowance (paid every January of the year) =N=21,875,000.00 September allowance =N=2,246,749.67 Annual leave allowance =N=2,500,000.00 Annual Passage allowance =N=3,125,000.00 Annual Holiday ticket =N=3,020,833.34 13th Month Salary (End of Year Bonus) =N=458,333.33 Club Membership Allowance of two social clubs (1) Bodyline Wellness Centre (=N=400,000) (2) Apapa Boat Club (=N=200,000) =N=600,000.00 Entertainment Allowance =N=1,875,000.00 Annual Lunch Allowance =N=1,250,000.00 Annual Security Allowance =N=1,875,000.00 Annual Utility Allowance =N=3,750,000.00 Monthly Fuel Allowance =N=60,000.00 Monthly Diesel Allowance 880 litres at the rate of N145 per litre =880 x 145 =N=127,600.00 g) An Order directing the 1st Defendant to pay to the Claimant, the sum of =N=30,000,000.00 (Thirty Million Naira Only) or any other sum as may be determined by the Board of the Defendant representing an Executive Director's profit sharing entitlement, due from the 1st Defendant as at 31st January, 2015 and a constant yearly payment of the Claimant’s share of the profit of the 1st Defendant until the Claimant’s employment with the Defendant is otherwise lawfully determined. h) An order of perpetual injunction restraining the Defendants whether by themselves or through their agents, officers, privies or howsoever from taking any step in connection with or howsoever related to the threats contained in the Defendant's letter dated 22nd January, 2015 including but not limited to debiting, charging and deducting any sums whatsoever from the Claimant's account with the 1st Defendant and/ or harassing, intimidating and coercing the Claimant to comply with the Defendants' letter of 22nd January, 2015. Alternatively to (c) - (e) above, i) The sum of =N=250,000,000.00 (Two Hundred and Fifty Million Naira Only) against the Defendants representing general damages for the psychological pain, inconvenience, discomfort and emotional stress, or whatsoever called caused by the Defendants to the Claimant, arising from the unlawful termination of the Claimant’s employment by the 1st Defendant. j) Claimant’s solicitor’s cost assessed at =N=20,000,000.00 (Twenty Million Naira). k) Interest on all sums due to the Claimant or as may be awarded by the judgment of this Court at the rate of 21 % per annum from the date of the institution of this action till judgment is delivered and thereafter at the same rate or any other rate this Honourable Court may deem fit till final liquidation of the judgment sum. Parties filed all their respective processes as required by the Rules of this Court including all front loaded documents as well. Subsequently, the 2nd Defendant brought two separate Notices of Preliminary Objections. Each sought different reliefs. This notwithstanding that the reliefs sought in both could have been brought by one application, heard and determined accordingly. In order therefore to ensure efficient time management and avoid delay of justice delivery, this Court directed that the two applications be heard together and determined as such. The first Notice of Preliminary Objection was filed on 6/3/15. By it the 2nd Defendant challenged the competence and jurisdiction of this Court to hear this suit against him and urged the Court to strike his name from the suit. The grounds of the objection are that - 1. The 2nd defendant being the Managing Director of the 1st Defendant cannot be sued in his personal capacity for any wrong or act done in the course of carrying out his official duty as such. 2. The 2nd Defendant is an agent of a disclosed principal. 3. Under sections 65 and 63(3) of Companies and Allied Matters Act, 1990 the Bank is a legal entity separate from its officers and Directors and the act of its officers are imputed to it. 4. The act of the Claimant suing the 2nd Defendant in his personal name for acts done in his official capacity is vindictive. In his written address accompanying the Notice of Preliminary Objection, learned Counsel for the Defendants submitted a lone issue for determination as follows - Whether having regards to the provisions of sections 65 and 66(3) of the Companies and Allied Matters Act, Laws of the Federation of Nigeria, 1990, and the fact that the 2nd Defendant at all material time acted in his capacity as the Managing Director of the 1st Defendant, this suit can be maintained against him in his personal capacity. Arguing this issue, learned Counsel submitted, citing Section 37, Companies and Allied Matters Act, Bebeji Oil Allied Product Limited v. Pancosta Limited (2007)31 WRN 163, Agbonmagbe Bank v. GB Olivant (1961)All NLR 116 & Okoli v. Morecab Finance Limited (2007)30 NSCQR (Pt. 1) 453, that a Company on incorporation maintains a separate and distinct legal personality from its members, officers and agents. Learned Counsel referred to paragraph 5 of the statement of facts and emphasised that by that paragraph, the 2nd Defendant ought not be sued in his personal capacity, referring to Section 65 & 66(3) of CAMA, 1990. Learned Counsel further cited Trenco Nigeria Limited v. African Real Estate and Invest Co. Limited (1978) LPELR-SC. 206/1996 & Okolo v. CBN (2004)17 NSCQR 105 Counsel prayed the Court to strike out the name of the 2nd Defendant from this suit as same can be effectively determined without his personal presence. The Claimant filed a 4-paragraph Affidavit in opposition to the said Notice of Preliminary Objection on 30/4/15 and a written address dated 27/4/15. The sole issue put forward for determination by the Claimant is - whether, having regards to the facts of this case, the 2nd Defendant ought not to be a party to this suit. Arguing this lone issue, learned senior Counsel to the Claimant submitted that of truth a company upon incorporation is an abstraction with separate and distinct legal personality; that its active and directing will must consequently be sought in the person of its managers and that the state of mind of the Managers is the state of mind of the company and it is treated as such at law, citing Bolton (Engineering) Co. Limited v. Graham and Sons (1957)1 QB 159 & Mr. Samuel Ogbaji v. Arewa Textiles Plc (2000)11 NWLR (Pt. 678) 322. According to learned silk, it is not in all purposes that an employee of a company may be called an agent and that officers of a company who are identifiable for particular and specific actions will be held accountable and liable for the consequences of their actions as a company is an abstraction. Counsel urged the Court to so hold. Learned senior Counsel added that section 65 of Companies and Allied Matters Act merely reveals that the act of the Board or Managing Director in the usual way of business amounts to the acts of the company; that where the act done is not in the usual way of business of the company, then the company will not be liable; that the section does not relate to the instant case when an employee of a company sues her immediate boss for instigating the company against her and that section 66 of Companies and Allied Matters Act cited by the learned Counsel to the 2nd Defendant does not support his case as the 2nd Defendant did not act within the scope of his employment. Learned Counsel submitted that the 2nd Defendant is not only a proper party but desirable and necessary party to the just determination of this action for the reasons and facts shown in the complaints and the statement of facts, citing Green v. Green (1987)3 NWLR (Pt. 61) 480. 2nd Defendant filed a counter affidavit dated 12/10/15 in opposition to the Claimant's affidavit dated 30/3/15 and a written address of the same date. Counsel placed reliance on his counter affidavit and adopted the argument contained in his written address as his final reply on points of law. It was the submission of learned Counsel that the principle of law established in Okoli v. Morecab Finance Limited (2007)14 NWLR (Pt. 1053) 37 was whether a Director or owner of a Company can be held personally liable for the debt of the Company, that it is the same issue that is for determination in the instant case. Learned Counsel urged the Court to discountenance the affidavit of the Claimant because paragraphs 3b-3g contained extraneous matter contrary to section 115(2), Evidence Act, 2011. He further prayed the Court to strike out the name of the 2nd Defendant from this suit. The 2nd Defendant also has another preliminary objection dated 16/3/15 and filed on 18/3/15. By it 2nd Defendant urged the Court to either strike out his name from the originating process or set aside the service of same for want of jurisdiction. The grounds for the objection are as follows - 1. The 2nd Defendant sued in his personal name resides in Abuja and work at the Head Office of the 1st Defendant in Abuja, outside the territorial jurisdiction of this Court. 2. That the 2nd Defendant was served the originating processes of this Court in breach of the Rules of this Court. 3. That the Claimant did not observe the provisions of sections 97 and 89 of the Sheriff and Civil Process Act S18, Laws of the Federation of Nigeria, 2004 in the issuance and service of the Originating processes on the 2nd Defendant. 4. The 2nd Defendant was not given adequate time to prepare his defence for the case as he was given 14 days as against the 30 days to appear contrary to the Sheriffs and Civil Process Act (Supra). 5. The Claimant did not obtain leave of Court to serve the 2nd Defendant the Originating Processes. 6. The Claimant fails to issue a concurrent writ to be served on 2nd Defendant who resides in Abuja pursuant to the rules of this Court. The Notice of Preliminary Objection was supported by an 11-paragraph affidavit and a written address. In the written address, learned Counsel set down a lone issue for determination as follows - Whether having regards to the failure of the Claimant to comply with the Rules and the extant statutory provisions on issuance and service of Originating processes on a Defendant who evidently resides outside jurisdiction, the Originating processes and the service of same on 2nd Defendant is not void and ipso facto disrobes this Court of the requisite jurisdiction to entertain this matter. Arguing this issue, learned Counsel submitted that this Court has no jurisdiction to entertain this matter as the Originating processes issued and served on the 2nd defendant are void not having complied with the Rules of this Court and specifically the provisions of sections 97 & 99 of the Sheriff and Civil Processes Act Cap. S6, Laws of the Federation of Nigeria, 2004. Counsel submitted that jurisdiction of a Court to entertain a matter is a threshold issue as any order made by a Court without jurisdiction is null and void no matter how beautiful the proceedings were conducted, citing Olutola v. University of Ilorin (2004)20 NSCQR 256, Mark v. Eke (2004)17 NSCQR 60 & Madukolu v. Nkemdilim (1912)ANLR 589. Counsel pointed out that by the Affidavit of the 2nd Defendant which was not controverted, the 2nd Defendant resides in Abuja and also works in the Head Office of the 1st Defendant in Abuja; that 2nd Defendant was served the Originating processes at the 1st Defendant's Office in Lagos and that he was neither served personally nor have the processes posted or sent by currier as required by the Rules of this Court. Counsel added that the service of the originating processes on the 2nd Defendant did not also comply with sections 96, 97 and 99 of the Sheriff and Civil Processes Act and that the provisions of Orders 7 Rule 1 and Order 4 Rule 5 of the Rules of this Court requiring personal service or postage or currier service of an originating summons on human party and the endorsement of a correct address for service of the Defendant on the Defendant are not made for fun but to be obeyed. Learned Counsel prayed the Court to decline jurisdiction respecting this case. In opposition, the Claimant filed a 4-paragraph Counter Affidavit and a written address on 4/5/15. Learned silk placed reliance on all the paragraphs of the Counter Affidavit and adopted his written address as his submission in opposition. The lone issue set down for determination is - Whether the 2nd Defendant's application ought to be granted. Citing Order2 Rule 1 of the Rules of this Court, learned silk submitted that the import is that a Defendant can be served originating processes where he resides, carries on business or has a presence; that the address where the 2nd Defendant was served is one within the jurisdiction of the Court and in which the 2nd Defendant has a presence and that the fact that the 2nd Defendant has been served becomes obvious in view of the Statement of Defence already filed on his behalf. He urged the Court to discountenance the contention of the 2nd Defendant as same is unmeritorious. Respecting the relevance of Sheriff and Civil Process Act to the instant suit, learned silk submitted that the 2nd Defendant having entered an appearance and joined issues with the Claimant by virtue of his statement of defence has waived his rights to complain that he was not properly served, citing Ames Electrical Co. Limited v. FAAN (2002)1 NWLR (Pt. 748) 354. He prayed the Court to so hold and dismiss the preliminary objection as filed by the 2nd Defendant. A further and better affidavit dated 12/10/15 was filed on behalf of the 2nd Defendant on the same day together with a 6-page reply on points of law. In the said reply on points of law, the 2nd Defendant merely reiterated his main argument that he was not properly served and that the Court should uphold his preliminary objection to this suit. I have read all the processes filed by learned Counsel for the 2nd Defendant/Applicant and the reactions of the learned senior Counsel for the Claimant. Having done so, I have come to narrow the issue for determination down to one thus - Whether the 2nd Defendant is entitled to a grant of all or any of the reliefs sought in his two preliminary objection. The first relief sought by the 2nd Defendant in his first preliminary objection is for the Court to decline jurisdiction on the ground that he could not be sued in his personal capacity as the Managing Director of the 1st Defendant. The law is trite that an incorporated body or company is a distinct and separate entity from its promoters and Directors. It is also trite that an incorporated entity acts through the instrumentality of its officers. Thus such incorporated entity is bound by the act of its officers provided that they act within the scope of their authority and the business of the incorporated company. Is the 2nd Defendant entitled to be released from this suit at this stage? Is his presence needed in whatever guise or form for the determination of the issues raised by the Claimant? In other words, is the 2nd Defendant a necessary and proper party for the just determination of this case? Can some of the issues raised by the Claimant be properly and completely resolved in the absence of the 2nd Defendant in this suit? There is no doubt the fact that the 2nd Defendant was the Managing Director of the 1st Defendant at relevant period before the institution of this case. It is also a fact not disputed by the parties that at the relevant time both the Claimant and the 2nd Defendant were employees of the 1st Defendant. It is therefore apt to state that whatever actions taken by the 2nd Defendant in his official capacity and in the course of business of the 1st defendant, the 2nd Defendant cannot be held liable being an agent of the 1st Defendant. I perused the statement of facts filed by the Claimant. I note that paragraphs 16, 17 and 18 of same contained some allegations against the 2nd Defendant which only the 2nd Defendant will be able to respond to. For instant, did the 2nd Defendant develop hostility towards the Claimant? Did he also instigate the subordinates against the Claimant? Is it true that the 2nd Defendant levelled so many spurious, false and unwarranted accusations against the Claimant to the Board with a view to frustrating the Claimant out of the Bank? Could the 2nd Defendant have taken any of these steps on behalf of and as an agent of the 1st Defendant? Were those acts and conduct alleged against the 2nd Defendant within the scope of his authority, schedule of duties and the business of the Ist Defendant? To strike out the name of the 2nd Defendant from this suit as sought at this stage, I hold, will amount to denying the 2nd Defendant the opportunity to be heard in respect of allegations as serious as stated. I, thus, in the interest of justice, refuse the application for the name of the 2nd Defendant to be struck out of this suit. The other relief sought by the 2nd Defendant in his second preliminary objection is an order of Court setting aside the service of the Originating processes on him for non compliance with the Rules of the Court and extant provisions on service. In order to determine whether the 2nd Defendant is entitled to the grant of this relief, it is apt to examine the jurisprudence behind service of processes of Court of which originating processes are integral part. Rules of Courts at all levels of adjudication provide for service of processes. The rationale for this without much ado is firstly to give the defendant notice of existence of a suit against him, the party suing him, the nature of the suit, the Court in which the suit is instituted. The second, among others, is to afford him the opportunity to prepare for and defend the suit, if he desires so to do. See Ihedioha v. Okorocha (2015) LPELR-25645 (CA). Thus, service of originating processes and other Court processes is designed essentially to serve the interest of justice. It is meant to ensure that Judgment of Court is not procured against a party without his knowledge of the existence of a case against him. The need for service is not meant to work injustice but to ensure justice and in this wise real justice as opposed to technical justice. Therefore, once a party is served, any challenge of same on ground of non-personal service is nothing but an attempt to use an interest of justice provisions in the Rules of Court or extant statutory provisions to work injustice. In the instant case, not only has the 2nd Defendant been served and represented in Court, he has in addition filed a defence in which issues have been joined with the Claimant. The present attempt by the 2nd Defendant to set aside the service on him is nothing but an effort towards technical justice. That era, that is the era of technical justice, is long gone and consigned to the dustbin of history. Ogunbiyi, JSC in Ikechukwu v Nwoye & Anor. (2013) LPELR SC. 131/2013 put it succinctly as thus ''... the expected result of adjudication on any matter is, whether justice has been done to the case or not. The quest is for justice; hence technical justice which breeds injustice should not be allowed to rear its ugly head and thus beclouding the very reason why the system is put in place. The principle of technical justice has long been done away with under our judicial system of adjudication and given in to substantial justice as the prevailing order of the day.'' at page 10. Both the law and Rules of Court are meant for and designed to achieve end of justice. Anything to the contrary must certainly be rejected by the Court. It is perhaps in recognition of the fact that Rules of Court are geared to achieve end of justice that the Rules of this Court in Order 5 Rule 1 provides that failure to comply with any of the Rules may be treated as an irregularity and the Court may give any direction as it thinks fit. I thus hold that in the interest of justice the application to set aside service of originating process as sought by the 2nd Defendant is refused. The 2nd Defendant has been given notice of the existence of this suit against him, has entered an appearance and filed a defence. The interest of justice demands that this matter be heard on the merit and I so direct. Finally, for the reasons as contained in this Ruling, the two preliminary objections brought by the 2nd Defendant are refused and dismissed accordingly. This matter shall therefore proceed to be heard and determined on the merit. Ruling is entered accordingly. .......................................... Hon. Justice J. D. Peters Presiding