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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: May 27, 2011 SUIT NO. NIC/LA/29/2009 BETWEEN 1. Mr. Brian Harding 2. Mr. Upali Jayasinghe 3. Mr. Raj Melwani 4. Mr. Prakash Gidwani 5. Mr. Pedro Capinpin 6. Mr. Geofrey Powel 7. Mr. John Archer 8. Mr. Derek Bob 9. Mr. Giuseppe Carbone 10. Mr. Tony Stephens 11. Mr. Valentine Benga 12. Mr. Mark Davis 13. Mr. Tony Charlesworth - Claimants AND 1. Lyk Engineering Corporation 2. Lyk Engineering Company Ltd 3. Lyk Construction Company Ltd 4. Ibom Power Company Ltd 5. Resource Petroleum and Petrochemicals Ltd 6. Akwa Ibom Investment and Industrial Promotion Council 7. The Attorney-General of the Akwa Ibom State Government 8. The Ministry of Power 9. Mr. Gareth Wilcox 10. Mr. Peter Lin 11. The Economic and Financial Crimes Commission 12. The Attorney General of the Federal Republic of Nigeria - Defendants REPRESENTATION Victor Obaika, for the claimants and with him are Oluwaseyi Oni and Miss Onyebuchi Katchy. Dr Kingsley Ekwere, Director, Office of the Attorney General of Akwa Ibom State, for the 4th, 6th, 7th and 9th defendants. A. A. Suleiman, for the 8th defendant. E. A. Jackson, for the 11th defendant. Ayo Akam, for the 12th defendant. RULING By a complaint dated and filed on the 23rd October 2009, the claimants prayed this court for the following reliefs against the defendants: (a) The sum of Three Million, Five Hundred and Thirty Nine Thousand, Six Hundred and Ninety-Nine Naira, Ninety Kobo (NGN3,539,699.90) being arrears of the claimants’ local salaries/allowances and interest at the rate of 21% per annum from the date of termination of each of the claimants’ employment till judgment and thereafter at the rate of 10% per annum until final payment. (b) The sum of One Million, Two Hundred and Fifty One Thousand, One Hundred and Ninety Dollars, Seventy Cents (US$1,251,199.70) being arrears of the claimants’ offshore salaries/allowances and interest at the rate of 21% per annum from the date of termination of each claimants’ employment till judgment and thereafter at the rate of 10% per annum until final payment. (c) Damages in the sum of US$381,845.39 and interest at the rate of 21% per annum till judgment and thereafter at the rate of 10% per annum until final payment. In reaction, the 4th, 6th, 7th and 9th defendants entered appearance, filed a statement of defence and a notice of preliminary objection all dated the 24th November 2009 and filed on the same day. The notice of preliminary objection is premised on the grounds that: (1) This court lacks jurisdiction to hear and determine this matter not being a matter related to or in connection with the settlement of trade disputes or interpretation of collective agreements as contained in section 7 of the NIC Act 2006. (2) That by virtue of the above the 4th, 6th, 7th and 9th defendants/applicants shall move the court to dismiss the entire suit with substantial costs against the claimants. The 8th defendant entered conditional appearance in reaction to the complaint and filed a notice of preliminary objection dated 25th January 2010 but filed on the 2nd February 2010. Its ground of objection is set out as follows: 1. There is no cognizable cause of action against the 8th defendant/applicant. 2. This court lacks jurisdiction to entertain the suit. The 11th defendant in reaction also filed a notice of preliminary objection dated 25th June 2010 and filed on the 28th June 2010 praying that its name be struck off the suit on the following grounds: (i) The [claimant’s] suit does not disclose any reasonable cause of action against the 11th defendant. (ii) The 11th defendant neither employed any of the [claimants] nor had any privity of contract of employment with any of the [claimants] and, therefore, committed no breach of contract against any or all of the [claimants]; therefore he is neither a proper or necessary party in the suit. (iii) The 11th defendant did not in any way contribute to the chain of events that gave rise to the cause of action pursuant to which the [claimants] instituted this suit. The 11th defendant’s objection is supported by a 6-paragraphed affidavit sworn to by Madu Phillip, a civil servant, of the Economic and Financial Crimes Commission. The claimants did not file a counter-affidavit to the preliminary objection. However, the 4th defendant filed a 6-paragraphed counter-affidavit sworn to by Ime Asibong, the company Secretary of the 4th defendant. The 12th defendant also filed a notice of preliminary objection in reaction to the claimants’ complaint praying that his name be struck out of the suit on the following grounds. 1. The subject matter of this suit consists of contracts of employment between the claimants and the 1st defendant and the claims of the claimants are for damages for the breach of the contracts. 2. The 12th defendant was not a privy to the contracts of employment between the [claimants] and the 1st defendant. 3. There is no law which places a responsibility on the 12th defendant to ensure that parties to the said contract comply with the terms of the contract. 4. The action does not disclose any reasonable cause of action against the 12th defendant. 5. The action is statute-barred as against the 12th defendant in that it was not commenced within 3 months from the date of the alleged cause of action as required by the Public Officers Protection Act. 6. The action constitutes an abuse of the process of court. 7. This court lacks the competence and the jurisdiction to entertain the action. The preliminary objection is supported by a 7-paragraphed affidavit sworn to by Ayo Akam a legal practitioner. The claimants did not file a counter-affidavit to the objection. All parties agreed to argue the preliminary objections on record and counsel filed written addresses accordingly which they adopted as their arguments. The written address of the 4th, 6th, 7th and 9th defendants in support of their preliminary objection is dated 23rd February 2010 and filed on the 24th February 2010 while the claimants reply address is dated 24th March 2010 and filed same day. Counsel to the 4th, 6th, 7th and 9th defendants submitted that where a court does not have jurisdiction to entertain a suit before it, the proceedings however well conducted will be a nullity, citing Ogunmoku v. Military Administrator Ogun State [1999] 3 NWLR (Pt. 594) 261 and Petro Jessica Enterprise Ltd v. Leventis Technical Company Ltd [1992] 5 NWLR (Pt. 244) 675 at 693. Learned counsel submitted that this court has both original and appellate jurisdiction in civil causes and matters and went on to reproduce section 7(1) and 7(4) of the National Industrial Court (NIC) Act 2006. He submitted further that this court’s jurisdiction is limited to trade disputes and the interpretation of collective agreements with high incidence of ministerial discretion. He contended also that only group interests as opposed to individual interests are amenable to the jurisdiction of this court and went ahead to make a comparative analysis with the Industrial Courts in South Africa, Switzerland, Trinidad and Tobago. He stated that in those countries the Industrial Courts are established to secure, maintain and further good industrial relations and employment conditions. He finally submitted that this court lacks jurisdiction to entertain this matter especially as the claimants are before a competent High court for the same reliefs. He urged the court to dismiss this case with substantial costs against the claimants for abuse of court process. Replying, learned counsel to the claimants submitted that the jurisdiction of this court extends beyond the scope of just trade disputes and interpretation of collective agreements. He submitted that the NIC has been empowered with exclusive jurisdiction to determine all labour related matters including disputes arising from employment contracts. He reproduced section 7(1) of the NIC Act 2006 and submitted that the word “including” when used in a statute as is used in 7(1)(a)(i) presupposes that other instances apart from the ones listed are contemplated by the statute. He referred to Utih v. Onoyivwe [1991] 1 NWLR (Pt. 166) 166 and Madam Alice Okesuyi v. Fatai Alabi Lawal [1991] 1 NWLR (Pt. 170) 661 at 676 for the definition and meaning of the word “including” in a statute and submitted that the term “Labour” would by its natural import also include regular employment contracts. The claimants’ counsel also referred to the Black’s Law Dictionary, 8th Edition, for the definition of labour and to section 91 of the Labour Act 1974 for the definition of the term wages. He submitted that the employment contracts of the claimants meet the definitions of ‘labour’ and ‘wages’ and, therefore, by extension fall well within the statutorily defined exclusive jurisdiction of this court in section 7(1)(a)(i) of the NIC Act 2006. He finally urged the court to hold that the claimants’ matter is well within the exclusive jurisdiction of the court and decline in its entirety the application of the 4th, 6th, 7th and 9th defendants. The 4th, 6th, 7th and 9th defendants filed no reply on points of law. The written address of the 8th defendant is dated 25th January 2010 and filed on the 2nd February 2010 while the reply address of the claimants is dated 1st March 2010 and filed on the same day. Learned counsel submitted that jurisdiction is the lifeline of all trials and the basis for beginning to try a case; for a trial without jurisdiction is a nullity citing, Fayemi v. LGSC Oyo State [2005] 6 NWLR (Pt. 921) 301. He argued that closely linked to jurisdiction is the cause of action, citing Idachaba v. Ilona [2007] 6 NWLR (Pt. 1030) 293. He submitted that for a cause of action to arise in a matter, at least two things must have occurred, namely, the wrongful act of the defendant and the consequent damage to the claimant, citing Bakare v. NRC [2007] 17 NWLR (Pt. 1064) 606. Counsel to the 8th defendant further submitted that a party seeking redress without a cause of action cannot cloth the court with jurisdiction to hear the matter, referring to FRIN v. Gold [2007] 11 NWLR (Pt. 1044) 19. He argued that none of the claimants’ originating processes reveal either the wrongful act of the 8th defendant or any resulting damage on any of the claimants as a result of the act of the 8th defendant. That this is so because there is no contractual relationship between the 8th defendant and any of the claimants as the claimants were engaged by the 4th defendant, even though the 4th defendant is under the supervision of the 8th defendant in this matter. Learned counsel to the 8th defendant then submitted that a party is not under any obligation to bear the burden of a contract to which it is not privy even if it is in that party’s favour or for that party’s benefit because only the contracting parties know what their enforceable rights and obligations are. He referred to CAP Plc v. Vital Investment Ltd [2006] 6 NWLR (Pt. 976) 251 – 252 and stated that the 8th defendant neither signed nor entered into any contract with any of the claimants and that by the doctrine of privity the 8th defendant should not be made to bear the burden of a contract where its rights and obligations were in contemplation. Learned counsel also submitted that the claimants have no clear dispute or claim against the 8th defendant and the court has a duty not to speculate on facts before it but can only decide a suit based on the issues laid down before it, citing Adama v. Anaja [2004] 2 NWLR (Pt. 858) 460. He finally submitted that none of the processes filed by the claimants discloses a valid cause of action as there is no privity of contract between the claimants and the 8th defendant. He urged the court to strike out the 8th defendant from this suit with substantial costs against the claimants for abuse of court process. In replying, learned counsel to the claimants submitted that from paragraphs 26, 27, 28, 29, 30, 31, 33, 34 and 35 of the statement of claim it can be seen that a substantial cause of action has arisen. He argued that the 8th defendant is the registered shareholder of 80 million redeemable preference shares in the 4th defendant and so the claimants may join the 8th defendant as a party to this suit in order that the 8th defendant be held responsible for the act of the 4th defendant in this suit. Learned counsel submitted that the 8th defendant is a necessary party to this suit and as such the subject matter of this suit cannot be fairly dealt with without having it being joined as one of the parties. He cited Peenok Investment Ltd v. Hotel Presidential [1982] 12 SC 1, Green v. Green [1987] 3 NWLR (Pt. 61) 48 and Oluwaniyi v. Adewunmi [2008] 13 NWLR (Pt. 1104) 387. The claimants’ counsel also argued that the court is empowered to draw aside the veil of incorporation of the 4th defendant where it finds it expedient to do so, citing Adeyemi v. Lan & Baker [2000] 7 NWLR (Pt. 663) 33 at 51 and urged the court to permit the corporate veil of the 4th defendant to be lifted in order that justice may be attained and afforded to the claimants. He finally urged the court to hold that the 8th defendant is a necessary party to the determination of this suit and to decline in its entirety the application of the 8th defendant. The 8th defendant did not file a reply on points of law. The 11th defendant’s written address is dated 25th June 2010 and filed on the 28th June 2010. Learned counsel to the 11th defendant submitted that the 11th defendant has no employment contract or any contract at all with any of the claimants. He submitted that the claimants’ suit discloses no reasonable cause of action against the 11th defendant and stated that the basis of making the 11th defendant a party to this suit is the averment in paragraph 24 of the statement of fact that the 11th defendant is holding in an escrow account the approximate sum of $4,000,000 USD belonging to the 2nd defendant on behalf of the creditors to the 2nd defendant. That none of the documents frontloaded by the claimants supports this averment. Learned counsel to the 11th defendant further submitted that the 11th defendant has no civil jurisdiction in any matter where neither the claimants nor any other person made criminal complaints to the 11th defendant on this matter. He further submitted that in the absence of a court order, and none has been produced by the claimants in this case, the 11th defendant cannot hold any person’s money in the alleged escrow account. He submitted that the 11th defendant has been misjoined and urged the court to strike out its name from the suit, citing Vallance v. Birmingham Corporation (1876) 2 Ch. D 369, and referring to Fidelis Nwadialo’s Civil Procedure in Nigeria (2nd edition) page 175 – 177. Learned counsel argued alternatively that if the claimants seriously contend that the 11th defendant is actually holding any money of the 2nd defendant, than the act he submitted will qualify as executive, administrative or management decision of a Federal Government Agency as contemplated by section 251(1)(p) of the 1999 Constitution for which it is the Federal High Court that has exclusive jurisdiction over the issue and not the NIC. He cited National Union of Electricity Employees v. Bureau of Public Enterprises [2010] 7 NWLR (Pt. 1194) 538. He finally urged the court to strike out the name of the 11th defendant and hold that it was misjoined or alternatively hold that it is the Federal High Court that has jurisdiction to entertain same. In response, the claimants counsel informed the court that he had no objection to the name of the 11th defendant being struck off this suit. The 12th defendant’s written address is dated 28th September 2010 and filed same day. Learned counsel to the 12th defendant submitted that the 12th defendant was not privy to the contract of employment and is not bound by any of the terms of the contract as an action can only be brought against a person who was a party to it, citing Cameroon Airlines v. Otutuizu [2005] 9 NWLR (Pt. 929) 202 at 223 and Basinco Motors v. Woermann-Line & anor [2009] (no citation is provided). He submitted also that no reasonable cause of action is disclosed against the 12th defendant, citing Oni v. Igbalajobi [2006] 9 NWLR (Pt. 984) 182 and Chevron Nig. Ltd v. Lonestar Drilling Nig. Ltd [2007] NWLR (Pt. 1059) 168 at 178 for the definition of cause of action. He argued that the claimants have not pleaded any facts or law that justifies the 12th defendant being made a party to this suit and it is not the duty of the court to speculate, citing Ayeni v. Adesina [2007] 7 NWLR (Pt. 1033) 262. Learned counsel also argued that the claimants have not pleaded any fact or law which places a responsibility on the 12th defendant to have ensured that the claimant’s salaries were paid. Arguing further, counsel to the 12th defendants stated that there is no claim by which the 12th defendant can be bound so as to make him a necessary party to this suit. That if there is a law which places a responsibility on the 12th defendant to ensure that claimants’ salaries are paid as alleged by them, then he can only be ordered by way of mandamus to discharge the duty required of him under such circumstances; and there is no claim for an order of mandamus. He submitted that the claims are contractual for which the 12th defendant cannot be bound, he not being a party to the employment contracts. Learned counsel also submitted that the 12th defendant being a public officer, the responsibility alleged against him, if at all it exists is a public duty and accordingly he is protected under section 2(a) of the Public Officers Protection Act which provides that an action “shall not lie or be instituted unless it is commenced within three months after the act, neglect or default complained of”. He argued that this action ought to have commenced latest September 2007 when the alleged cause of action arose and not in 2009 thereby rendering the action statute-barred as it relates to the 12th defendant. He cited Yare v. NSIWC [2006] 2 NWLR (Pt. 965) 549, LAUTECH v. Ogunwobi [2006] 4 NWLR (Pt. 971) 577, CBN v. Ukpong (no citation is given) and Yakubu v. NITEL [2006] 9 NWLR (Pt. 985) 375 and then went on to submit that the proper order in the circumstances is that of dismissal as against the 12th defendant. Learned counsel also submitted that this suit constitutes an abuse of the process of the court as it is not supported by any law and is, therefore, frivolous and vexatious, citing Ali v. Albishir [2008] 3 NWLR (Pt. 1073) 94 at 141 and Chief Victor Umeh & anor v. Prof Maurice Iwu & ors [2008] 2 – 3 SC (Pt. 1) 135. He finally submitted that this court lacks the competence and jurisdiction to determine this suit against the 12th defendant and that each ground of objection operates against this suit. The claimants did not file a written reply address but informed the court that he had no objection to the 12th respondent being struck off the suit. In considering the preliminary objections, we shall begin with the objections of the 11th and 12th defendants. The claimants have indicated that they have no objection to the names of the 11th and 12th defendants being struck off. We, therefore, order that the names of the 11th defendant, the Economic and Financial Crimes Commission, and the 12th defendant, the Attorney General of the Federal Republic of Nigeria, be struck off this suit. The objection of the 4th, 6th, 7th and 9th defendant is premised on the grounds that as this suit is not a trade dispute neither is it one seeking for interpretation of a collective agreement, it is outside the purview of section 7 of the NIC Act 2006 and, therefore, this court lacks jurisdiction to hear and determine this matter. A court is competent and has jurisdiction in a case if inter alia the subject matter of the case is within its jurisdiction, and there is no feature in the case that prevents the court from exercising its jurisdiction. The question is whether the claimants’ claim for arrears of salaries and allowances in relation to termination of their employment all come within the purview of section 7(1)(a) of the NIC Act 2006. Section 7(1)(a) provides as follows: 7(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters – (a) relating to – (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto. The question which arises is whether the claims put up by the claimants are in relation to labour or matters incidental to labour?. The position of this court in several cases is that issues of dismissal/termination and claims arising there from are matters of labour or at worst are matters incidental to labour as provided in section 7(1)(a) of the NIC Act reproduced above and this position is reinforced by the fact that the jurisdiction of this court under section 7 of the NIC Act is subject based. See Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine v. Obafemi Awolowo University Teaching Hospital Management Board, In re: Medical and Dental Council of Nigeria and Nigerian Medical Association unreported Suit No. NIC/8/2006 delivered on May 22, 2007. This court went further to hold in Godwin Tosanwunmi v. Gulf Agency and Shipping Nigeria Ltd unreported Suit No. NIC/18/1006 delivered on 14th June 2007, that an analysis of section 7 of the NIC Act reveals the wide ambit of matters that fall within the meaning of the term labour and that any matter that qualifies as labour or incidental to it will qualify as such and so would confer jurisdiction on this court. The claimants in this suit are complaining about unpaid arrears of salaries and allowances. This deals with conditions and terms of employment and so comes within the purview of labour under section 7 of the NIC Act. We consequently hold that the claims of the claimants come within the jurisdiction of this court and hereby dismiss the preliminary objection of the 4th, 7th and 9th defendants. The complaint against the 4th, 7th and 9th shall proceed to hearing. The 8th defendant’s objection is premised on the grounds that there is no cognizable cause of action against it. The claimants argue that the 8th defendant is a necessary party because it is a registered holder of eighty million redeemable preference shares in the 4th defendant and have also pleaded this fact in paragraph 21 of the statement of claim. The claimants have also pleaded in paragraph 26 of the statement of claim that they were all employed by the 1st defendant Lyk Engineering Corporation to work with the 2nd, 3rd, 4th and 5th defendants. There is therefore no privity of contract of employment between the 8th defendant and the claimants. The 8th defendant is a stranger to the contract of employment. The general law is that a contract cannot be enforced by or against a person who is not a party to it. Only parties to a contract can be necessary parties in litigation. See Cameroon Airlines v. Otutuizu [2005] 9 NWLR (Pt. 929) 202. Furthermore, the only fact pleaded in the statement of claim against the 8th defendant which has already been mentioned above is that it is a shareholder in the 4th defendant company. The same is the case with the 6th defendant who by paragraph 19 of the statement of claim merely holds shares in the 4th and 5th defendants. Shareholding does not in itself translate to being an employer without more. Nothing in the originating processes indicates that the 6th and 8th defendants beyond being shareholders are employers of the claimants. We find that the fact of shareholding is insufficient to ground a cause of action against the 6th and 8th defendants and consequently hold that there is no reasonable cause of action against them. We hereby order that the name of the 6th and 8th defendants, Akwa Ibom Investment and Industrial Promotion Council and the Ministry of Power respectively, be struck off this suit and the complaint and other originating processes be amended accordingly. For the avoidance of doubt the case against the 1st, 2nd, 3rd, 4th, 5th, 7th, 9th and 10th shall proceed to hearing. All court processes are to be amended to reflect this fact. Ruling is entered accordingly. We make no order as to cost. …………………………. Hon. Justice B. B. Kanyip Presiding Judge ……………………………………... ……………………..…………… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge