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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: June 1, 2012 SUIT NO. NICN/LA/38/2012 BETWEEN Mr. Emmanuel Osarobo Isokpan - Claimant AND Equitorial Trust Bank Limited - Defendant REPRESENTATION I. G. Nweneka for claimant. Chris Ekemezie, with him Ijeoma Okam for defendant. RULING This is a notice of preliminary objection filed on the 12th March 2012 by the defendant pursuant to section 6 (6)a of the 1999 Constitution and the inherent jurisdiction of the court. It is challenging the competence of this action and seeking an order striking out this suit. The grounds of objection are as follows: 1. This suit is an abuse of court process. Particulars: 1. There is another suit pending at the High Court of Lagos State (Suit No. LD/1920/2011) instituted by the claimant against the defendant herein. 2. The reliefs sought by the claimant in this action are the same reliefs the claimant is seeking in the said action before the High Court of Lagos State. 3. The said suit by the claimant before the High Court of Lagos State is still pending. 2. This suit is not properly constituted. The preliminary objection is supported by a 9 paragraph affidavit sworn to by Ijeoma Okam a Legal Practitioner to which is annexed two exhibits. Accompanying the objection is a written address dated 9th March 2012. The claimant in reaction filed a 3 paragraph counter affidavit which was sworn to by Justina Ebereonye, a litigation assistant on the 20th March 2012 to which is annexed one exhibit. Also accompanying the counter affidavit is a written address dated 20th March 2012. Parties adopted their respective addresses. Learned counsel to the defendant raised two issues for determination as follows: 1. Whether this suit is not an abuse of court process. 2. Whether this suit is properly constituted so as to confer jurisdiction on the Honourable court. He submitted that it is improper use of the judicial process and an abuse of court process for a party to institute a multiplicity of actions in respect of the same subject matter against the same defendant. He cited Agwasim v Ojichie [2004] All FWLR (Pt 212) 1600 at 1608, Okafor v A.G. Anambra State [1991] 6 NWLR (Pt 200) 659, Okon v Eyo [2009] All FWLR (Pt 493) 1412 at 1422. He stated that the claimant had filed a similar matter suit No. LD/1920/2011 in the Lagos State High Court which is pending between the same parties, the same subject matter, the same issues and facts as this instant case and that this constitutes an abuse of court process as the matter in the Lagos High Court is scheduled to come up on the 21st March 2012. He submitted that until the claimant obtains the leave of the Lagos State High Court to discontinue this suit and same is struck out, it is an abuse of court process for the claimant to institute this action. He argued that the rationale is to avoid a situation where two courts make conflicting orders in respect of the same subject matter and avoid the obvious irritation and harassment to the defendant. He urged the court to hold that this suit is an abuse of court process. On issue 2, he submitted that for a court to have and exercise jurisdiction the action must be properly constituted with respect to the parties. He further submitted that no action can be brought by or against any person other than a natural person as a general rule unless at the time the action is commenced such party has either a legal personality under the name by which it is sued or a right to sue and be sued by that name citing Knight and Scale v Dove [1964] 2 AER 307, Fawehinmi v NBA (No.2) [1989] 2 NWLR (Pt 105) 558. He submitted that to determine whether or not this court has jurisdiction to entertain this matter, recourse must be to the writ of summons and statement of claim citing Felix Onuorah v Kaduna Refining & Pet Company Ltd [2005] 2 SC (Pt 2) 1 at 9-10. Referring to paragraph 8 of the affidavit, he submitted that the defendant no longer exsists and has no legal personality under the name by which it is sued citing Sharon Paint & Chemical Co. Ltd v Ezenwaku [2001] FWLR (Pt 43) 290, Akas v Manager & Receiver of Estate of Anwadike [2001] FWLR (Pt 71) 1714. He submitted that the court is deprived of jurisdiction to entertain this matter citing Madukolu v Nkemdilim [1962] 1 ANLR (Pt 4) 587. He urged the court to strike out the matter. The claimant in its address decided to adopt the two issues framed by the defendant. On issue 1, learned counsel to the claimant referred to section 254C(1) of the 1999 Constitution as amended and submitted that this suit is not an abuse of court process as this court has been given exclusive jurisdiction to entertain causes and matters relating to labour and employment. He argued that the suit filed in the Lagos State High Court has been discontinued and submitted that where a claimant validly discontinues or expresses an intention to discontinue one of pending actions, there is no abuse of the process of court citing Messrs N.V. Scheep & Anor v The MV “S” Araz & Anor [2000] 12 SC (Pt 1) 164 at 206. He submitted that suit No. LD/1920/2011 filed in the Lagos High Court does not constitute an abuse of court process as the claimant does not intend to continue with it and urged the court to so hold. On issue 2, the claimants counsel submitted that it is the law that confers legal personality on a limited liability company referring to sections 37 and 38 (1) of the Companies and Allied Matters Act (CAMA) CAP C20 LFN 2004. He submitted that the defendant is duly registered at the Corporate Affairs Commission with RC No. 145392 and that there is no evidence before the court that it has been de-registered by the Corporate Affairs Commission. He submitted further that there is nothing to show that the defendants banking licence has been withdrawn, and that a banking license does not confer legal personality on the defendant, but is simply an authority to carry on banking business relying on section 2(1) of the Banks and other Financial Institutions Act CAP B3, 2004 LFN. He argued that the surrender of a banking license does not automatically strip the defendant of its legal personality. That to have that effect, the defendant must in addition be struck off from the Register of Companies referring to section 454(1) & (2) of CAMA. He submitted that the defendant is a legal person recognised by the laws of the country. He urged the court to hold that the suit is properly constituted and dismiss the objection with N100,000 costs against the defendant. I have carefully considered the processes filed, submissions made and authorities referred to. There is no dispute between the parties that the claimant filed an action suit No. LD/1920/2011 at the Lagos State High Court. The defendant deposed to the fact that the matter was scheduled to come up on 21st March 2012. The claimants position is that he filed a notice of discontinuance which was fixed for hearing on the 21st March 2012. This objection was heard on the 26th April 2012. Neither counsel informed the court about what became of the proceedings of the 21st March 2012 at the Lagos High Court. In any event, paragraphs 2b, c, d, e, f & g of the counter affidavit filed by the claimant is reproduced as follows: 2b. That while attending to another matter in court, her attention was drawn to the third amendment to the 1999 Constitution which conferred exclusive jurisdiction on employment matters on this court. c. That based on this fact, on 7th February 2012, she filed a notice of discontinuance of suit no. LD/1920/2011 in accordance with the High Court of Lagos State [Civil Procedure] Rules, 2004 and the defendant was served. A copy is attached and marked Exhibit A. d. That the application is fixed for hearing on 21st March 2012. e. That consequent upon filing of the notice of discontinuance, the claimant on 8th February 2012 initiated these proceedings. f. That the claimant does not intend to pursue the suit in the High Court of Lagos State, which has already been withdrawn. g. That the defendant is a limited liability company duly registered with the Corporate Affairs Commission with registration number 145392 and has not been de-registered. The claimant also exhibited the notice of discontinuance filed at the Lagos High Court. The defendant has not denied any of the above facts. I am therefore satisfied that the claimant has no intention of continuing with the suit filed at the Lagos High Court and has discontinued same. Furthermore by virtue of the provisions of section 254C (1) (a) of the 1999 Constitution as amended the Lagos High Court does not have jurisdiction to entertain this matter as it is this court that has been conferred with exclusive jurisdiction to entertain labour and employment matters. I hold that the suit at the Lagos High Court has been discontinued and that this present suit is not an abuse of court process. On the issue whether or not this suit is properly constituted with respect to the parties so as to confer jurisdiction, the law is that for an entity to claim the right to sue and be sued eo nomine, it must be shown to be vested with that capacity. This is either by incorporation or by a legislation either expressly or by implication. See lyke Med Merchandise v Pfizer Inc. [2001] 10 NWLR (Pt 722) 540, Akas vs Manager & Receiver of Estate of Anwadike [2001] FWLR (Pt 71) 1714. The defendant has deposed to the fact that the defendant banks no longer exsists but has not exhibited any document to support this fact. He who asserts must prove. See section 131(1) & (2) of the Evidence Act 2011. There is no winding up or dissolution order before me to support this assertion by the defendant. Rather, the defendant in paragraph 2 of its statement of defence has admitted paras 1 & 2 of the statement of facts where the claimant pleaded as follows: Statement of Facts 1. The claimant was at all times material to this action an employee of the defendant and is ordinarily resident at No. 12, Jomo Kenyatta Street, Crown Estate, Lekki Peninsula, Lagos. 2. The defendant is a limited liability company duly licensed to carry on banking business in Nigeria and has its Head Office at Plot 1092, Adeola Odeku Street, Victoria Island, Lagos. It is trite law that facts admitted need no further proof. See section 123 of the Evidence Act 2011 and Tijani Jolasun v Bamgboye [2010] 18 NWLR (Pt 1225) 285. I hold that the defendant is a juristic person and is still in exsistence not having been wound up and dissolved as required by Law. See sections 454(1) & (2) of CAMA CAP C20, LFN 2004. For all the reasons given above, this notice of preliminary objection is dismissed for lacking in merit. Cost of N5,000 is to be paid to the claimant by the defendant. The matter is to proceed to hearing. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae