Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 18, 2016 SUIT NO. NICN/LA/33/2015 BETWEEN Mr. Adegbola Simeon Ajose - Claimant AND Energo Nigeria Limited - Defendant REPRESENTATION Dare Albert, for the claimant. Adebayo Balogun, with Miss Bisola Oluwole, for the defendant. RULING 1. On 12th February 2015, the claimant took up a complaint (along with other accompanying originating processes) against the defendant praying for the following reliefs – a) The sum of N10,000,000 (Ten Million Naira) being the cost of death benefit in respect of the deceased who died on active service with the defendant. b) Special damages the sum of N4,000 (Four Thousand Naira) for the release of and clearance paid by the claimant to the Heath Manpower Resources Center LUTH on 14/1/2013. c) The sum of N10,000,000 (Ten Million Naira) being the General Damages against the defendant for the death of the deceased i.e. Sunday Ajose the claimant son on 12th January, 2013. d) And also an interest on such damages at such rate for such period as the Court shall thinks just. 2. In reaction, the defendant filed a motion on 27th November 2015 praying for an order dismissing this suit for failure to disclose reasonable cause of action and for such further or other order(s) as the Court may deem fit to make in the circumstances. In support of the motion are an affidavit and a written address, to which the claimant filed a written address in opposition. The defendant in consequence, filed a reply on pints of law. 3. The defendant started off by narrating the background facts of the case, which is that the claimant is the father of the late Sunday Ajose who died from an accidental slip from scaffolding while working for the defendant. That the claimant had before the commencement of this suit approached and collected from the defendant the sum of N616,050 as his entitlements from the defendant. That no allegation of wrongdoing or breach of duty under any statute or contract has been made against the defendant at all material times of this suit. 4. The defendant then framed one issue for the determination of the Court: “whether the claimant’s statement of claim discloses a reasonable cause of action”; and answered same in the negative. To the defendant, where a court is called to dismiss an action on the sole ground that it discloses no reasonable cause of action, the only document that will be examined by the court in arriving at a decision is the statement of claim and not the statement of defence, citing Rinco Construction Co. Ltd v. Veepee Industries Ltd [2005] 9 NWLR (Pt. 929) 85 at 99. The defendant then asked if in scrutinizing the claimant’s claim carefully one can discern a reasonable cause of action. Before determining this question, the defendant proceeded to define what a reasonable cause of action is. It referred to Rinco Construction Co. Ltd v. Veepee Industries Ltd (supra), which relied on Ibrahim v. Osim [1988] 3 NWLR (Pt. 82) 257 at 267 and defined a cause of action as the entire set of circumstances giving rise to an enforceable claim including the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. 5. The defendant continued that the claimant has not established any claim against the defendant, nor do the set of circumstances of facts pleaded by the claimant give rise to an enforceable claim against the defendant. That by paragraph 6 of the statement of claim, the claimant made it clear that Sunday Ajose, his son, died “as a result of slip from scaffolding” while working for the defendant and in paragraph 7 insisted that his son’s death was as a result of an “accident” while on duty. By paragraph 26, the claimant had collected the entitlements of his son from the defendant. The defendant urged the Court to note that in the entire statement of claim (paragraphs 1 – 27), there is no averment of wrongdoing or breach of duty whether imposed by statute or contract against the defendant. That it is not enough to allege that the claimant was an employee and dies in the course of his employment; it is necessary to allege what wrongdoing the defendant committed or the breach of any duty imposed on it by law or contract, which caused the death. Furthermore, that even the reliefs claimed are not in respect of any alleged wrongdoing or breach of any duty imposed by law or contract. The defendant then asked as per relief a) whether there is any relief like “cost of death benefit”. That all the reliefs of the claimant do not stand on any legal ground; as such the statement has disclosed no cause of action at all much less a reasonable cause of action, citing Ogbeimi v. Ololo [1993] 7 NWLR (Pt. 304) 129. The defendant then urged that the case be dismissed relying on Cookey v. Fombo [2005] 15 NWLR (Pt. 947) 183 at 207 – 208. 6. In reaction, the claimant raised a sole issue, in the alternative, for the determination of the Court, to wit: Whether the pleadings of the claimant disclose reasonable cause of action against the defendant. OR Whether the claimant son died as a result of industrial accident or was redundant by the defendant. 7. In arguing his case, the claimant referred to JVC Professional Prod. (UK) Ltd v. Famuyide [2011] All FWLR (Pt. 578) 970 at 985, Rinco Construction Co. Ltd v. Veepee Industries Ltd [2005] All FWLR (Pt. 264) 816; [2005] 9 NWLR (Pt. 929) 85 SC at 99 and Cookey v. Fombo [2005] 15 NWLR (Pt. 947) 183 at 207 – 208 which defined a cause of action as every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. It is the submission of the claimant that his statement of claim discloses a reasonable cause of action against the defendant. He urged the Court “to take a look at the claimant pleadings wherein it is a provable cause of action which is only provable by evidence of both parties”, referring to Nkpoinwi v. Ejire [2011] All FWLR (Pt. 557) 716 at 726. That the claimant’s case is accordingly sustainable and has reasonable cause of action, referring to Adekoya v. Sadipe [2012] All FWLR (Pt. 638) 895 at 913 and Ikene LG v. West Africa Portland Cement Plc [2012] All FWLR (Pt. 642) 1747 at 1770 – 1771. That from his averment in the statement of claim, “it is obvious that there is a arguable trial able and contestable issue to be tried by the Court”; and that where there is a relief there is a trial able cause of action. In conclusion, the claimant urged the Court to dismiss the defendant’s application with substantial cost because it is an abuse of court process and lacks merit, brought mala fide. 8. In reacting on points of law, the defendant pointed out that the case of the claimant is that he maintains that his suit discloses a reasonable cause of action, citing various cases which declare no more than the definition of a cause of action and how same is determined. The defendant then submitted that the claimant failed to canvass argument in opposition to the position of the defendant. That what the claimant did was merely to make general statement, citing copious cases by failing to relate the general statements and authorities to the relevant facts of this case. To the defendant, the law is that in order to establish that a statement of claim discloses a reasonable cause of action, it must set out the legal rights of the claimant and how those rights have been infracted by the defendant. That if the legal right cannot be established, invariably, there could not have been an infraction, citing Savage v. Uwaechia [1972] 3 SC 213, Ogoh v. Enpee Industries Ltd [2004] 17 NWLR (Pt. 903) 449 and UBA Plc v. BTL Industries Ltd [2004] 18 NWLR (Pt. 904) 180 CA. The defendant then urged the Court to grant its prayer by dismissing this suit “with substantive cost”. COURT’S DECISION 9. I heard learned counsel and considered all the processes filed in this case. The single issue before the Court is whether the claimant’s case discloses a cause of action or a reasonable cause of action. In this regard, there is no controversy that it is the originating processes only that can be looked into to determine whether or not there is a cause of action or a reasonable cause of action. Cause of action is said to consist of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733. 10. What actually then is the case of the claimant? I had asked the claimant this question in open Court. The answer I got is that the claimant is coming under the Employee’s Compensation Act (ECA) 2010, which came into force on 17th December 2010. The problem here is that section 12 of the ECA 2010 makes a distinction between claiming compensation under the ECA 2010 and filing an action in Court. In other words, a claimant may elect to claim compensation under the ECA 2010 or bring an action in Court. See Amina Hassan v. Airtel Networks Ltd & anor unreported Suit No. NICN/LA/471/2012 the ruling of which was delivered on 11th February 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), 1st Edition, 2013 at page 35. See also this Court decision in Ola Suleiman v. Hongzing Steel Company Limited unreported suit No. NICN/LA/73/2011 the judgment of which was delivered on February 26, 2015. 11. The point is, if it is true that the claimant is coming under the ECA 2010 then he is prematurely before this Court because unless the processes of the ECA 2010 are completed, recourse to this Court cannot be made. See section 55 of the ECA 2010. But if the claimant elects to by-pass the ECA 2010 processes and instead opt for the option of filing a case in court, as it seems to be the case in the instant suit, then the action of the claimant must be in negligence. The problem is that a reading of the originating processes of the claimant does not clearly show that this is the case. First, it is unclear what really the case of the claimant is. The defendant rightly asked what “cost of death benefit” as per relief a) signifies or stands for as to be granted by this Court. I also asked this question in open court and got no answer from the claimant. 12. Secondly, and as rightly pointed out by the defendant, nowhere in the originating processes did the claimant allege any wrongdoing to the defendant. All the claimant said is that his son died as a result of an industrial accident while on duty for the defendant and that the death of his son is as a result of falling from the scaffolding while on duty. This does not, for instance, suggest that the death of the claimant’s son is not as a result of the claimant’s son’s fault himself for no fault was imputed to the defendant. 13. As a corollary of the second point, negligence is a question of fact, which must be pleaded and particulars given if an action in it is even to be heard. Case law authorities are very clear on this. For instance, Diamond Bank Ltd v. Partnership Investment Co. Ltd & anor [2009] LPELR-939(SC), [2009] 18 NWLR (Pt. 1172) 67 held that a plaintiff, as a matter of law, is required in an action on negligence, to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. That it is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant on a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant. See also A. G. Leventis Nig. Ltd v. Chief Christian Akpu [2007] LPELR-5(SC); [2007] 6 SC (Pt. I) 239; [2007] 17 NWLR (Pt. 1063) 416, Justice K. O. Anyah v. Imo Concorde Hotels Limited & ors [2002] LPELR-512(SC); [2002] 12 SC (Pt. II) 77, Koya v. UBA [1997] 1 NWLR (Pt. 481) 251 and Machine Umudje & anor v. Shell-BP Petroleum Development Company of Nigeria Ltd [1975] 9 – 11 SC 155. The Court of Appeal in MTN Nigeria Communications Ltd v. Mr. Ganiyu Sadiku [2013] LPELR-21105(CA) was more specific when it held that in order for the claimant to obtain judgment he must particularize the items of negligence in his statement of claim i.e. he must also prove particulars. See further Kabo Air Ltd v. Ismail Mohammed [2014] LPELR-23614(CA), Mainstreet Bank Plc v. Dizengoff (West Africa) Nig. Ltd [2014] LPELR-24193(CA), Seven Up Bottling Co. Plc v. Mr. Aluko Olusola Emmanuel [2013] LPELR-21104(CA) and Access Bank Plc v. Mr. Ethel O. Ugwuh [2013] LPELR-20735(CA). 14. A look at the pleadings of the claimant will show that nowhere were the particulars of the negligence of the defendant given to enable the defendant answer to them; neither is it indicated the duty of care owed to the claimant by the defendant. There is accordingly nothing in the pleadings that the defendant is expected to answer to as to warrant this case being heard. No wrongdoing has been alleged against the defendant to warrant a holding by this Court that there is a cause of action or even a reasonable cause of action. It is accordingly my finding and holding that the claimant has failed to disclose any cause of action or reasonable cause of action as to warrant this case proceeding to trial. The application of the defendant has merit and is hereby upheld. The claimant’s case is accordingly dismissed. 15. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD