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RULING 1. The claimants had filed this suit on 4th February 2016 by way of a complaint and the accompanying originating processes praying for the following reliefs: (1) A declaration that the defendant is not at liberty to decide whether or not to comply with the extant provisions of the law, to wit - Employee Compensation Act 2010, Pension Reform Act and any subsisting and ending provisions of the law/relevant legislation applicable to businesses operated within the Federal Republic of Nigeria. (2) A declaration that the defendant is bound in Law to enroll the deceased under the following statutory schemes to wit, with: (a) National Social Insurance Trust Fund. (b) A Pension Fund Administrator. (c) An assurance Company go group Assurance. (3) An order of this Honourable Court directing the defendant to compensate the claimant and put him and those he represents in the status they would have being had the defendant complied with the provisions of the these Laws by way of an award of substantial damages claimed in the following species to wit: A. SPECIAL DAMAGES (i) Group Assurance Claims: Total = N900,000.00 The sum of N900,000.00…only being compensation representing the equivalent of the monthly emolument of the deceased over a minimum of 3 year period calculated at the rate of N25,000…only per month which was his last earned income same being the insurable limit required by law and payable to the beneficiaries. (ii) Pension Retirement Saving Account Total = N44,2000.00 May 2014 - July 2014 N7,000 by 20% = N4,200.00 August 2014 - March 2015 N25,000 by 20% = N40,000.00 The sum of N4,200.00 which represents 20% of the statutory contribution due from the employer having elected to contribute solely by its refusal to enroll from May 2014 to July 2014 on N7,000 and the sum of N40,000.00 which represents 20% of the statutory contribution due from the employee on a N25,000.00 salary from August 2014 to March 2015 which represent the employer’s portion of contribution towards the deceased’s contributory pension fund. (iii) Employee Compensation Total = N2,000,000.00 The sum of N2,000,000.00…which represents the minimum proportionate pecuniary losses suffered by the claimant and the other beneficiaries in relation to the deceased employee compensation. COMPOSITE SPECIAL DAMAGE N900,000.00 + N44,200.00 + N2,000,000.00 = N2,944,200.00 (Two Million, Nine Hundred and Forty-Four Thousand, Two Hundred Naira only) B. GENERAL DAMAGES: = N1,000,000.00 (One Million Naira only) Being the cost of litigation and psychological strain due to the careless comment by the defendant = N1,000,000.00 2. The defendant entered formal appearance and filed its defence processes. The matter proceeded to trial on 15th November 2016, where the Court asked that the sworn deposition of the claimant as CW be shown to him to identify as his own and as the deposition he signed. The claimant stated that he has eyesight issues and can only identify the document if read out to him. Meanwhile, the sworn deposition itself had no illiterate jurat to the effect that the claimant as CW signed it only after it was read out to him. This of course meant that the quality of the deposition was now in issue. The claimant’s counsel immediately applied for an adjournment to enable him put his house in order. Thereafter, the claimant’s counsel applied for leave to file a fresh witness statement on oath and substitute the problematic one, which was granted on 18th May 2017. A further leave was sought by the claimant’s counsel to substitute even this witness statement and bring in additional documents. This was granted on 8th March 2018. However, the Court noted that the suit was filed on 4th February 2016, while the letters of administration brought in virtue of the leave of Court granted is dated 14th March 2016, meaning that it was secured after the suit was filed. Secondly, the letters of administration was given to two people but only one of which filed the instant suit. Lastly, there is a difference in name between the claimant in this suit (Abisi) and the 1st administrator as per the letters of administration (Abosi). All of this raised the issue whether the suit itself was competent. Parties were then ordered to file written addresses on the competence of the suit. The claimant’s written address was filed on 5th April 2018. The defendant filed its own on 28th May 2018. The claimant’s reply on points of law was filed on 5th June 2018. 3. The claimant submitted three issues for determination, namely: (1) Whether this suit which was commenced without first seeking and obtaining letters of administrator is competent. (2) Whether it is appropriate for only the claimant to maintain the cation when the letters of administration was granted to two (2) administrators. (3) Whether the discrepancy in the surname of the claimant as contained the grant viz the substantive suit is fatal to the suit. 4. Before addressing these issues, the claimant first submitted that the claimant is the next of kin of the deceased and by that fact is automatically a beneficiary to the Estate of the deceased. That it is by these reasons that he along with one of his sons applied for the grant of letters of administration over the estate of the deceased. That with effect from 14th March 2016 when the letters of administration was granted to the duo by the High Court of Lagos State, they transmuted from being next of kin to becoming personal representatives/administrators. 5. On issue (1), therefore, the claimant submitted that he can commence this suit without first seeking and obtaining letters of administration. That not only is there a reasonable cause of action in this case but the claimant has the locus (the connection between him and the cause of action) to initiate the suit. That a beneficiary who can demonstrate sufficient interest in the estate of a deceased intestate can bring an actin to protect the estate whether or not there are personal representatives charged with managing the estate. That the defendant is aware that the claimant is the father of the deceased who died intestate; therefore, being the father clothes the claimant with the requisite authority to defend the interest of the untended estate pending the grant of the letters of administration, citing section 4(3)(d) of the Administration of Estate Law 2003, Col. A. C. Ugwunze v. Chief Adegboyega Adeleke & 2 ors [2007] LPELR-CA/L/250/2002 and Disu v. Ajilowu [2006] 14 NWLR (Pt. 1000) 783. That the instant suit was filed to protect the property of the estate prior to obtaining the grant of administration which has now made him an administrator/personal representative. The claimant then urged the Court to hold that he has shown sufficient interest in the subject matter and has demonstrated that he is entitled to the death benefit of the deceased who died intestate while in the service of the defendant. 6. For issue (2), the claimant reiterated that a next of kin can bring an action aimed at defending and protecting the estate which he has shown sufficient interest in. That the grant of the probate on 14th March 2016 has only fortified the position of the claimant who can now act in dual capacity as both next of kin and an administrator. That sequel to the Court’s observation on 8th March 2018, the 2nd administrator, Mr Ignatius Abisi, was contacted and he deposed to an affidavit dated 5th April 2018 before this Court confirming his earlier consent alongside with other family members mandating the claimant to solely prosecute this action on tenor behalf. That this accordingly addresses the concern about the authority to act on behalf of the 2nd administrator. 7. Regarding issue (3), the claimant submitted that the discrepancy in name (Abosi/Abisi) noticed in the process filed vis-a-vis the grant is a misnomer and minor error, which can be corrected at any time even by an oral application made to the Court. In any event, that Abosi/Abisi is actually the surnames of the claimant and his family members which they have used interchangeably for a very long time. In conclusion, the client urged the Court to declare that this suit is competent. 8. The defendant on its part submitted four issues for determination, namely: (1) Whether the complainant has the locus standi to sue before the issuance of letters of administration. To the defendant, a person lacks the competence to bring an action in a representative capacity as an administrator of the Estate of a deceased person until he has been granted the letters of administration. That in the instant case, the claimant filed an application for summary judgment signifying the commencement of this suit on 2nd February 2016 but did not exhibit the letters of administration until 28th February 2017. That the law is that one cannot put something on nothing, citing UAC v. Mcfoy [1962] - incomplete citation. That failure to file the letters of administration, which is a condition precedent for the assumption of jurisdiction, is fatal to the claimant’s case. (2) Whether the complainant has met the requirement of, condition precedent for instituting this class action. That since the presumably cause of action is directly related to the payment of benefits to the deceased, Order 11 Rules 1, 2, 3 and 6 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 dealing with entitlement of deceased employee who died intestate make provisions that should be adhered to; and if not, this Court may not entertain the action. To the defendant, the claimant failed to comply with Order 11; as such his claim is incompetent. (3) Whether failure to comply with Order 11 Rules 1 - 3 and 6 is mere irregularity or substantive enough to render this suit incompetent. Citing Madujolu & ors v. Nkemdilim [1962] 1 All NLR 587 and Zakari v. Nigerian Army [2015] 62 (Pt. 1) NSQR at 266, the defendant submitted that the failure of the claimant to comply with Order 11 Rules 1 to 3 and 6 is fatal to his case and so this Court is robbed of jurisdiction. (4) Whether the complainant in this matter has a cause of action. To the defendant, from the application for summary judgment and all other processes that the defendant showed that the complainant is bereft of any cause of action since it can be gleaned from the totality of the facts in the pleading that the deceased was not an employee of the defendant at the time of the action and has no record of service, no documentation certifying him as an employee and none has been presented to this Court. That it will be a waste of judicial time to assume jurisdiction over this matter, citing Bello v. AG Oyo State [1986] 5 NWLR (Pt. 45) 828 and Akilu v. Fawehinmi (No. 2) [1989] 2 NWLR (Pt. 102) 122. The defendant concluded by urging the Court to strike out this case. 8. The claimant responded on points of law in terms of the issues submitted by the defendant for determination. On the issue of the claimant’s locus to sue, the claimant submitted that locus is not transient and tenured and does not have anything to do with time; rather it automatically inheres on the claimant when a cause of action arises and remains with the claimant even after the court has completely adjudicated on the matter. That what gives a person the right to bring an action is the ability of the complainant to show sufficient interest in the subject matter, citing Egbe v. Adefarasin (No. 1) [1985] 1 NWLR (Pt. 3) 549. That by Order 11 Rule 5 of the NICN Rules 2017, parties can call witnesses who can testify on the issue as to who is entitled to the entitlements of a deceased benefactor; in which case, the testimonies can only happen in the cause of trial which means the Court must first entertain the action. The claimant then reiterated his submissions as to section 4(3) of the Administration of Estate Law 2003 and concluded that the defendant has a total misconception of the concept of locus standi in trying to impress on the Court that the claimant can only be clothed with ;locus to commence this suit only when the High Court has granted him letters of administration. 9. On the defendant’s issue (2), the claimant submitted that all the conditions precedent have been met when this suit was filed. That there was no rule in force as at February 2016 when the claimant field this suit which made it compulsory that letters of administration must be annexed at inception. That the Constitution forbids any law having retroactive effect. That the current NICN Rules made in 2017 cannot have retrospective effect as to mete out injustice. 10. On the defendant’s issue (3), the claimants submitted that rules of Court are meant to guide parties in the proper conduct of their cases. That in the instant case, the consequence for not adhering to Order 11 Rules 1 to 3 going by Rule 6 is that this Court may not entertain the action or may treat it as incompetent. But the as far as this case is concerned, this Court has already entertained the suit as far back as 2nd February 2016 when the suit commenced; and on 8th March 2018, this Court granted leave to the claimant to bring in letters of administration which completed the circle of bringing the action into conformity with Order 1 Rule 8(1) and (2), urging the Court to hold that the action is competent. 11. Regarding the defendant’s issue (4), the claimant submitted that the question as to whether the claimant has a reasonable cause of action was never raised suo motu by the Court; and that the question whether the claimant was subject to labour law or whether the deceased was an employee of the defendant are issues that can at best be considered in the course of trial before the Court. That it is premature at this stage to reach any conclusion on these issues, urging the Court to order parties to proceed to trial. COURT’S DECISION 12. After due consideration of the processes and submissions of the parties, the key issue before this Court is whether this suit as filed is competent. And in determining the competence of a suit, only the originating processes are to be considered. By WAEC v. Akinkunmi [2008] LPELR-3468(SC); [2008] 9 NWLR (Pt. 1091) 151 SC [2008] 4 SC 1, “it is settled law that in ascertaining the competence of a suit, the determining factor is the plaintiff's claim”. This means that the affidavit in support of the written address the claimant filed alongside his written address on the competence of this suit is incompetent and cannot be considered in determining the competence of the instant suit. So the argument that “Mr Abisi Ignatus", the 2nd administrator, indicated vide the affidavit that he gave his consent to the claimant cannot be considered in determining the competence of this suit. In making his submissions, the claimant made reference to section 4(3) of the Administration of Estate Law 2003 both in his written address and the reply on points of law but did not indicate whether the law is State law (and if State law, of which State) or Federal Law. 13. The instant suit was filed on 4th February 2016. Accordingly, I agree with the claimant that the issue of the applicability of Order 11 of the National Industrial Court (Civil Procedure) Rules 2017 when the instant suit was filed does not arise; as such arguments as to only one of the administrators suing and the difference in name of the second administrator are irrelevant. The claimant could not thus have attached the letters of administration to the originating processes. While this argument is logical and correct, it losses sight of the exact issue raised by the Court. Thus when the claimant argued that there was no rule in force as at 4th February 2016 when the claimant filed this suit which made it compulsory that letters of administration must be annexed at inception, the claimant missed the point. The issue raised by this Court is not about annexing the letters of administration to the complaint when it was filed; it is that the suit predates the letters of administration. When the suit was filed on 4th February 2016, the letters of administration was not even in existence. It may have been applied for, but it was just not in existence. There is nothing in the pleadings to even show that it was applied for (and so was being awaited) when the suit was filed. 14. The claimant also argued that this Court granted him leave to bring in additional documents including the letters of administration, which completed the cycle of bringing the action into conformity with Order 1 Rule 8(1) and (2); and that the letters of administration now form part of the records of the Court. Once again, the claimant misses a crucial point. The fact that leave was granted him to bring in the letters of administration does not mean that thereby the utility or value of the letters of administration was assured. The claimant prayed that he be allowed to bring in letters of administration. His prayer was granted; although the utility of the letters of administration is yet to be considered. Accordingly, the issue raised by the Court goes to determining the utility of the letters of administration as far as this case is concerned. For instance, Iheanacho & anor v. Iwuamadi & anor [2013] LPELR-20689(CA), following section 83(3) of the Evidence Act 2011, held that a document (an exhibit) made during the pendency of a suit is not admissible. See also UTC Nigeria Plc v. Lawal [2013] LPELR-23002(SC). The letters of administration that the claimant brought in after filing this case was issued or made during the pendency of the instant suit. This being so, of what value is the letters of administration as far as this suit and the reliance of the claimant on it is concerned? This is the crucial point the claimant is missing in his submissions. There is no doubt that the letters of administration bears a date that makes the instant suit to predate it. This being so, the letters of administration have no value as far as this case is concerned; and I so find and hold. 15. The claimant sued as and on behalf of the Beneficiaries/Next of Kins to the Estate of Late Mr Daniel Abisi, who in paragraph 1 of the statement of facts was described as an employee of the defendant at time of death. This is in order. This led the claimant to argue that the question whether the deceased was an employee of the defendant is an issue that can at best be considered in the course of trial before the Court. This is where the claimant got it wrong. The truth of the matter, however, is that the question goes to the very root of the claimant’s case and the competence of the suit itself. All the claims of the claimant in this suit are hinged on the deceased being an employee of the defendant. It is true that an employment contract may be oral or by conduct. By Majekodunmi v. National Bank of Nigeria Ltd [1978] 3 SC 119, Compagne Generale de Geophysique Nigeria Ltd v. Okparavero Memorial Hospital Ltd [2011] LPELR-3995(CA), Mudiaga-Odje v. Younes Power System Nigeria Ltd [2013] LPELR-20306(CA) and Adedoyin v. Igbobi Devt Company Ltd [2014] LPELR-22994(CA), a contract can be implied by the conduct of the parties themselves. Section 7(1) of the Labour Cap L1 LFN 2004, however, provides that not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying the terms of the employment. The claimant did not frontload or furnish the contract of employment of the deceased nor the written statement of terms and conditions of his employment. Not even the additional documents brought in by the claimant has a copy of the deceased’s contract of employment. There is thus no basis other than the word of the claimant (which word is insufficient to prove) that the deceased was actually an employee of the defendant. This factual element is crucial to the success of the claimant. In Onuekwusi & ors v. The Registered Trustees of the Christ Methodist Zion Church [2011] LPELR-2702(SC); [2011] 6 NWLR 341, the Supreme Court laid down the criteria for determining competency of an action. The second criteria is what is relevant for present purposes. It is: “Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced otherwise the proceedings will be premature and consequently unsustainable”. See: Esin v. Matzen and Timin Nig. Ltd [1966] 1 All NLR 233; Mohammed v. UBA [1976] 2 FNR 21. Since there is no written proof that the deceased was an employee of the defendant, it is needless proceeding to trial as the claimant has prayed. 16. I traced the antecedents of this case, a case that has a history of the claimant fixing it in bits and pieces. First, it was the issue of the claimant not being able to even read his deposition, then the issue of illiterate jurat, and the fact that the claimant had to substitute his witness deposition twice: the first vide an order granted on 18th May 2017, and the second vide an order granted on 8th March 2018. In spite of all this, however, I am satisfied that this suit is incompetent. It is accordingly struck out. 17. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD