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REPRESENTATION M. J. DAUDU Esq. with L. U. EIYONEM for the claimant GEORGE BASSEY Esq. for the defendant JUDGEMENT The claimant, by a General Form of Complaint filed on 28th May, 2015 approached the Court for the following reliefs: 1. A declaration that defendant’s failure to pay the claimant’s salaries for twenty one (21) months while in the employ of the defendant amounts to a breach of contract of employment agreement entered into vide service Agreement made on the 22nd August, 2012 between the defendant and the claimant. 2. An order directing the defendant to pay to the claimant the sum of #1,260,000.00 (One Million, Two Hundred and Sixty Thousand Naira) being arrears of salaries owed the claimant for 21 months and the sum of #120,000.00 (One Hundred and Twenty Thousand Naira only) being arrears of leave grant owed the claimant for two months. 3. The sum of #10,000,000.00 (Ten Million Naira) as general damages/compensation for the hardship the claimant is made to undergo from when the breach occurred till determination of this suit. The Defendant brought a NOTICE OF PRELIMINARY OBJECTION dated and filed on 27th October, 2015, accompanied by a 12 paragraph affidavit and deposed to by Nsikak Essien, challenging the competence of this suit and the jurisdiction of this Honorable Court to entertain same as constituted against the defendant and consequently urged the Court to strike out the suit. GROUNDS FOR THE OBJECTION 1. The suit discloses no reasonable cause of action against the defendant; 2. The defendant is not the proper party, there being no privity of contract between the defendant and the claimant; 3. The National Industrial Court lacks jurisdiction to entertain the suit against the defendant; 4. It is necessary in the circumstances that this Honorable court makes an order striking out this suit. ISSUES 1. Whether the claimant’s claims as presently constituted discloses any cause of action against the applicant. 2. Whether the applicant is privy to the contract of employment between the claimant and the DE-OBABOB INVESTMENT LTD. (D-OIL)? ON ISSUE 1 Whether the claimant’s claims as presently constituted discloses any cause of action against the applicant. Learned Counsel for the defendant G. E. Bassey Esq. submitted that a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim and includes all those things necessary to give a right of action and every fact which is material to be proved to entitle the claimant to succeed. ONYEKWUSI v. R.T.C.Z.C. (2011) 6 NWLR (PT. 1243) 341; NDUKA v. OGBONNA (2011) 1 NWLR (PT. 1227) 153; EDJERODE v. IKINE (2001) 18 NWLR (PT. 745) 446; AMODU v. AMODE (1990) 5 NWLR (PT. 150) 356. Furthermore, that a cause of action is the bundle of facts which entitles an aggrieved individual to sustain an action and seek for available judicial remedies or redress. ATTORNEY GENERAL OF THE FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1; AKIBU v. ODUNTAN (2000) 13 NWLR (PT. 685) 446; BELLO v. A.G. OYO STATE (1986) 5 NWLR (PT. 45) 828; FADARE v. A.G. OYO STATE (1982) 4 S.C. 1; KUSADA v. SOKOTO NATIVE AUTHORITY 91968) SNLR 522. He submitted that where the claim does not disclose a cause of action; the court cannot properly assume jurisdiction to entertain the matter as jurisdiction is a sine qua non or the commencement of an action. MADUKOLU v. NKEMDILIM (1962) 2 NSCC 374 @ 379-380, AL NLR (PT. 4) 587; FALOYE v. OMOSENI (2001) 9 NWLR (PT. 7171) 190 @ 202, PARA. C. Learned defence counsel argued further that a cause of action must be reasonable. A.G. FEDERATION v. A.G. ABIA STATE & ORS. (2001) 1 NWLR (PT. 725) 689 @ 773, PARAS. A-E; P.V.C. LTD. v. LAWAL (2005) 15 NWLR (PT. 911) 121 @ 143-144; COOKEY v. FOMBO (2005) 15 NWRL (PT. 947) 182 @ 207-208, PARAS. H-F; A.G. ANAMBRA STATE v. OKAFOR (9192) 2 NWLR (PT. 224) 431, PARAS. A-B. Furthermore, that in determining whether a suit discloses reasonable cause of action, the court will necessarily restrict itself on an examination of the writ of summons and Statement of Facts. SEVEN UP BOTTLING COMPANY v. ABIOLA & SONS (2001) 13 NWLR (PT. 730) 469, PARA. C. More so, that a claim must be tied to something as you cannot put something on nothing. HEIN NEBELUNG ISENSEE K.G. v. UBA (2014) FWLR (PT. 719) 1137 @ 1159, PARAS. A-D. ON ISSUE 2 Whether the applicant is privy to the contract of employment between the claimant and the DE-OBABOB INVESTMENT LTD. (D-OIL)? Learned Counsel for the defendant submitted that in construing the relationship of the parties in a written contract, a court must confine itself to the plain words and meaning which are derivable from the provisions containing the rights and obligation of the parties therein. IBAMA v SPDC (2005) 17 NWRL (PT. 954) @ 364 – 385, PARAS. D-B. He posited that it is only parties to an action that can sue or be sued in relation to same. NEW RES. INT’L LTD. v. ORANISI (2011) 2 NWLR (PT. 1230) 102 @ 125, PARAS. G-H. Contending, that it is abundantly clear that the applicant has been dragged into this suit as a scape goat for the alleged non-performance of the contract of employment entered into between the claimant and DE-OBABOB INVESTMENT LTD. (D-OIL). MOHAMMED v. MOHAMMED (2012) 11 NWLR (PT. 1310) 1 @ 47 – 48, PARAS. H-A. He further submitted that the jurisdiction of this Honorable Court can only be invoked when the proper parties are brought before. COTECNA LTD. v. CHURCHGATE (NIG.) LTD. (2010) ALL FWLR (PT. 575) 252 @ 286, PARAS. C-D. The Claimant filed an 11 paragraph COUNTER AFFIDAVIT on 30th November, 2015. With a WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT Wherein the claimant raised one sole issue;- Whether the claimant’s claims as presently constituted discloses any cause of action against the applicant. Learned Claimant Counsel Rose Okoi, submitted that a reasonable cause of action is described as the factual situation or any situation or any fact relied upon by the claimant resulting from the act of the defendant which gives rise to a justifiable complaint. ADEPOJU v. AFONJA (1994) 8 NWLR (PT. 363) 437; ANUKWU v. EZE (2012) 11 NWLR (PT. 1310) 50; ATIKU v. FAWEHINMI (NO. 2) (1989) 2 NWLR (PT. 102) 122; BELLO v. A.G. OYO STATE (1986) 5 NWLR (PT. 45) 828. She contended further that it is the complaint and Statement of Facts that the Court must first look at before having recourse to affidavit and counter affidavit filed. KOLO v. FBN (2003) 3 NWLR (PT. 806) 216; ADESOKA v. ADEGOROLU (1993) NWLR (PT. 179) 293; AKILU v. FAWEHINMI (NO. 3) (1989) 2 NWLR (PT. 102) 122. Claimant’s Counsel submitted that claimant/respondent has the locus standi to sue the defendant which right he has dully exercised. EZEAFULU v. JOHN HOLT LTD. (1996) 2 NWLR (PT. 432) 511. The defendants filed a REPLY ON POINTS OF LAW TO WRITTEN ARGUMENTS OF COMPLAINT filed on 1st March, 2016. Wherein the defendant Counsel argued that when a defendant contends that the action of the claimant discloses no cause of action, he is raising an issue of jurisdiction of the court and that the success of that point of law takes away the right of action from the claimant leaving him with an empty unenforceable cause of action. OLAGUNJU & ANOR. v. PHCN (2011) LPELR-2556 (SC), per W.S.N. Onnoghen, JSC. On 19th April 2016 the defendants argued their preliminary objection and parties adopted their respective written addresses, the matter was then adjourned for ruling. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendant’s application. The choice of words and phrases of the defendant with respect to the ground on which the defendants brings this objection mainly grounds 1 and 2 ;- 1. The suit discloses no reasonable cause of action against the defendant; 2. The defendant is not the proper party there being no privity of contract between the defendant and the claimant; Combined to known grounds of objection the first being a lack of reasonable cause of action and secondly that the action if not brought against the proper party. I shall therefore deal with the object in those 2 categories so as to fully address the defendants objection within the law as we know it. I agree with the claimant that in order to determine the reasonableness of the claimants cause of action the court must restrict itself to the claimants originating processes. See the case of NNOSIRI & ORS. v. EASTERN BULKCEM CO. LTD. (2014) 44 N.L.L.R. (PT. 138) 113. Where this court held that “In determining whether or not a suit should be struck out due to non-disclosure of cause of action, the court must restrict itself to the facts pleaded in the Statement of Claim without resort to any extraneous facts…. MOHAMMED v. BABALOLA SAN (2011) LPELR-CA, per Tsammani, JCA P. 136, PARAS. B-F. Also the Court of Appeal in S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 43. Held that “The claim of a plaintiff confers jurisdiction on the court and the issues for determination must be confined to those issues. Where leave to raise a new issue not canvassed at the trial court is granted, the party must limit himself to the cause of action and the relief sought therein. In the instant case” The Appellant Court went on to say that a “Cause of action is the claim of the plaintiff vis-à-vis his pleadings or the originating summons and the facts in support”. And continued to state that a “Cause of action is the fact or facts which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to judicial relief. A cause of action is the right to enforce presently a cause of action … it is an aggregate of facts and circumstances giving rise to the right to file a claim in court for a remedy. It is the factual situation which a plaintiff relies upon to support his claim. A set of facts can contain one or several causes of action. EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1; ASABORO v. PAN OCEAN OIL (NIG.) LTD. (2006) 4 NWLR (PT. 971) 595. The question before the Court is whether there is a reasonable cause of action before the Court. But first, what is a cause of action? In COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR UNREPORTED SUIT NO. NICN/LA/114/2013 the ruling of which was delivered on July 10, 2014 this Court (relying on ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as – “…the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists 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 the case of NICN/LA/14/2014 NATIONAL THEATRE AND THE NATIONAL TROUPE OF NIGERIA BOARD Vs. MR. AKOGUN KOKUMO EKUNDAYO delivered 19th November 2014 See also AG, FEDERATION V. AG, ABIA STATE & ORS [2001] 11 NWLR (PT. 725) 689 AT 733 which is quite emphatic that the weakness of the claimant’s case or its unlikelihood to succeed are not factors to be considered in determining whether or not the claimant’s case discloses a reasonable cause of action. I looked through the complaint and the statement of facts. The case of the claimant is that the defendant, who is its employer and Managing Director and CEO of and doing business in the name and De-Obabob Investment Limited (D-Oil) employed the claimant as the Logistic ?Safety Officer (Assistant) since 22nd July 2012. And that he had worked with the defendant from 2012 to 2014 without any salary, and that on the 30th March 2014 the defendant paid the claimantN240, 000.00 (Two Hundred and Forty Thousand Naira ) being 4 month’s salary and that on 1st August 2014 the claimant demanded his outstanding salary only to be informed by the defendant pointblank that he would not be paid. Whereupon the claimant involved the Attorney General of the State and the Legal Aid Council before coming to court for inter alia twenty-one month’s salary, hence this suit and essentially relief 1-3, (i)-(d). See generally paragraphs 2, 3, 5, 8, 9, 11, 12, and 15 of the statement of facts. Do all of these disclose a cause of action and a reasonable cause of action at that?, I will answer the question in the affirmative. The 2nd ground was that defendant is not the proper party there being no privity of contract between the defendant and the claimant; The grouse of the defendant is that the claimant described the defendant as doing business in the name and style of De Obabob Investment Limited, the use of the words ‘in the name and style of’ connote a registration of a business name whereas the defendants maintain and have exhibited in their affidavit in support of their objection that De Obabob Inv. Ltd is in fact a limited liability company. It is curious to note that the defendant’s objection is not that the Mr. Bassey Nton Bassey is not the Managing Director and CEO of De Obabob Inv. Ltd but as to the nature of incorporation of the De Obabob Inv. Ltd. The position of the law is as was stated in COMRADE STEPHEN ASHINZE & 5 ORS V. WHITES AND VENTURE (NIG) LTD. (2015) 54 N.L.L.R PT 181 1- 152 @ Pg. 95 : On categories of persons who may sue and be sued. This court held that “Juristic persons who may sue and be sued en nomine have been recognized to include:- i. Natural persons, that is to say human beings; ii. Companies Incorporated under the Companies Act; iii. Corporations aggregate and Corporations sole with perpetual succession; iv. Certain Unincorporated Associations granted the status of legal personae by law such as:- (a) Registered trade Unions; (b) Partnerships and (c) Friendly societies or Sole Proprietorships. See also IYKE MED. MERCH V. PFIZER [2001] 10 NWLR (PT 722) 540; Fawehinmi v. Nigerian Bar Association (No.2) (1989)2 NWLR (Pt. 105) Pp.20-21, paras. GC. The status of the business name has been well established see the ruling of this court in NICN/CA/38/2014 MR. AUGUSTINE EFFIOM AFFIONG & ANOR Vs. BLEDOW INTERNATIONAL ENTERPRISES & ANOR delivered on 9th December 2014 “The status of a business name has been well considered in the case of SLB CONSORTIUM LIMITED V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) LPELR-3074(SC) where the Supreme Court held;- “a business name is not accorded legal personality - it is not recognized as a legal person capable of taking or defending actions in the law courts”. In the case of PFIZER INCORPORATED & ANOR Vs. PROF. IDRIS MOHAMMED [2013] 16 NWLR (Pt. 1379) 155 it was held that where a juristic and a non-juristic person are sued, the Court should simply strike out the non-juristic person; and that a party incorrectly named can be corrected but not when the error is as to the identity of the party. And in the case NICN/LA/576/2013 MR. KELVIN ASHUMAN Vs. U-CONNECT TELECOMMUNICATION NIGERIA LIMITED delivered on July 1, 2014 on the authority of PFIZER INCORPORATED & ANOR V. PROF. IDRIS MOHAMMED supra held therefore, the name of the 1st defendant is curable by the simple expedient of an amendment. Also see the case of ZAIN NIGERIA LTS Vs. ALHAJI MOHAMMED KAWA ILORIN (2012) LPELR-9249(CA). Suffice it to say that the majority opinion in the MAERSK LINE Vs. ADDIDE LTD [2002] LPELR 181 SC. Per Ogundare, J.S.C who read the lead judgment remarked at lines 30-35 page 458 of the Law Report thus:- "When counsel for the defendants took objection to the joinder of 1st Defendant on the ground that it is not a juristic person, it was open to counsel for the Plaintiffs to apply for amendment, on the ground of misnomer. He did nothing of sort…..” In the instant case the defendant cannot claim to have been misled by the claimants process which raises the question as to whether an amendment would not cure this defect. The status of a limited liability is clear in law, these organization are entitled to be sued or to sue in their own name. The claimant in this application argue that they relied on a document not brought before the court in the circumstances and barring any application for amendment the court find that there is no juristic person before the court and hence this matter is hereby struck out. Judgement is entered accordingly. …………………………………….. Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division