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RULING The claimant filed this complaint against the defendants on 16th February 2012 claiming the following: 1. A declaration that the defendant’s summary dismissal of the claimant from the 1st defendant’s employment based on unauthorised credit was without just cause, wrongful, unfair. 2. A declaration that the summary dismissal of the claimant by the 1st defendant constitutes a breach of the terms and conditions of the Collective Agreement that guide the claimant’s employment with the 1st defendant. 3. An order setting aside the letter of dismissal No: HCM/IRWS/0649/2011 dated 24th February 2011, by which the defendant purported to have summarily dismissed the claimant from its employment. 4. An order directing the defendants to reinstate the claimant and pay to the claimant his salaries, allowances and other entitlements accruable to him as the employee of the 1st Respondent from 24th February, 2011 till judgment and thereafter, until lawful determination of the contract of employment. 5. An order that the defendants shall not obstruct the payment to the claimant of his salaries and other perquisites of office or the enjoyment of other facilities appertaining to his employment until the expiration of the contract of employment or earlier lawful determination. 6. Perpetual injunction restraining the defendant from referring to the claimant as a dismissed employee. 7. IN THE ALTERNATIVE: An order directing the 1st defendant to pay N100,000,000.00 (One Hundred Million Naira) to the claimant being general damages suffered by the claimant for the summary dismissal. 8. An order directing the 1st defendant to pay N214,948,000.00 to the claimant being specific damages the claimant will suffer if not reinstated to his employment. Accompanying the complaint is the statement of facts, affidavit verifying complaint, list of witnesses and documents to be relied upon. In reaction, the defendants on the 3rd May 2012, entered a conditional appearance, filed a Notice of Preliminary Objection together with the written address in support and a motion on notice praying for an order extending the time to enable them file their conditional appearance and preliminary objection. On the 14th May 2012, leave was granted the defendants to file their conditional appearance and preliminary objection out of time. The preliminary objection is brought pursuant to the Sheriffs and Civil Process Act, CAP S8, LFN 2004 Section 417 of the Companies and Allied Matters Act, CAP C 20 LFN 2004 and Order 15 Rule 1 of the NIC Rules 2007. It is praying for the following orders: 1. A declaration that this Honourable Court lacks jurisdiction to entertain this action; or in the alternative; 2. An order declining jurisdiction to deal with this matter; 3. An order striking out this suit in its entirety; 4. And such further or other orders as this Honourable Court may deem fit to make in the circumstances. The grounds upon which the objection is brought are: 1. This action was commenced without leave of court; 2. The complaint is defective for non-compliance with the provisions of section 97 of the Sheriffs and Civil processes Act Cap S6 Laws of the Federation of Nigeria, 2004; 3. The 1st, 2nd and 3rd defendants/applicants are neither natural nor juristic persons, hence no legal action can be maintained against them; and 4. This honourable court lacks the jurisdiction to entertain this suit. The objection is supported by a 10 paragraph affidavit and a further affidavit sworn to on the 20th July 2012, both by Folashade Agbaje. The claimant in reaction filed a counter affidavit on the 18th May 2012 together with a written address. In response, the defendants filed a reply address on points of law on the 20th July 2012. The parties adopted their addresses on the 23rd July 2012. Learned counsel to the defendants submitted one issue for determination as follows: Whether this Honourable Court should not decline jurisdiction and thus strike out this matter in limine, on the grounds set out on the face of the Notice of Preliminary Objection. He submitted that there is no entity referred to as Afribank Nig. Plc. Now (Mainstreet Bank). That Afribank Nig. Plc and Mainstreet Bank Ltd are separate and distinct legal entities. He stated that Afribank Nig. Plc is in liquidation on account of the revocation of its banking license by the Central Bank. He referred to section 40 of the NDIC Act 2006 and section 417 of the Companies and Allied Matters Act (CAMA) and submitted that the NDIC having stepped in as the liquidator of the 1st defendant, no action can be commenced against it except by leave of the court. He argued that there is nothing to show that the leave of this court was obtained by the claimant before this action was instituted against the 1st defendant and this therefore renders the suit against the 1st defendant incompetent. He cited A.A.D Enterprises Ltd v MV Northern Reefer [2009] 12 NWLR (Pt 1155) 255. Learned counsel submitted that service of the originating processes in this matter is improper for non-compliance with the provisions of section 97 the Sheriffs and Civil Processes Act. He submitted that section 97 requires every writ of summons for service out of the state of issue to contain an endorsement to the effect that it is to be served out of the state. He argued that the complaint was issued in the Enugu Judicial Division and served on the defendants in Lagos with no endorsement as required by section 97 thereby rendering service of the complaint defective and incompetent. He cited Odu’a Investment Co. Ltd v Talabi [1997] 10 NWLR (Pt 523) 1 at 52, The Owners of the M.V. Arabella v Nigeria Agricultural Insurance Corporation [2008] 11 NWLR (Pt 1097) 182 at 206, Nwabueze v Obi-Okoye [1988] 4 NWLR (Pt 88) 664. He argued further that the claimant cannot rely on the nationwide jurisdiction of this court to avoid compliance with the mandatory provisions of section 97 of the Sheriffs and Civil Process Act and submitted that service of the complaint is void and ought to be set aside for non compliance. Learned counsel contented that the persons sued as defendants are persons unknown to Law in the sense that they are non juristic persons and no action can validly lie against non juristic persons. He argued that there is no entity by the name Afribank Nigeria Plc. Now (Mainstreet Bank) and that the 2nd and third defendants “Head, Human Capital Management” and “Managing Director” are merely positions and not persons conferred with legal personality either by statute or common law. He cited Njokwu v U.A.C. Foods [1992] 12 NWLR (Pt 632) 557, Administrators and Executors of the Estate of General Sani Abacha v Eke-Spiff [2009] 7 NWLR (Pt 1139) 97, Agbonmagbe Bank Ltd v General Manager [1961] 1 NLR 161, Fawehinmi v N.B.A. [1989] 2 NWLR (Pt 105) at 640 – 641, N.C.C. v M.T.N (Nig) Comm. Ltd [2008] 7 NWLR (Pt 1086) 229 at 258, Christaben Group Ltd v Oni [2008] 11 NWLR (Pt 1099) 84 and submitted that the defendants have not been conferred with legal personality and therefore the suit is incompetent and should be struck out. He submitted that the court lacks jurisdiction to entertain this matter as the proper parties are not before the court citing Plateau State v A.G. Federation [2006] 3 NWLR (Pt 967) 346, Oloriode v Oyebi [1984] 1 SCNLR 390, Amuda v Ajobo [1995] 7 NWLR (Pt 406) 170, Madukolu v Nkemdilim [1962] 2 SCNLR 314. He submitted that when a court lacks the jurisdiction to adjudicate over a matter, any proceedings or decision on such matter will be an exercise in futility citing Matari v Dangaladima [1993] 3 NWLR (Pt 281) 266, J.C. Ltd v Ezenwa [1996] 4 NWLR (Pt 443) 391. He then urged the court to strike out this suit for want of jurisdiction. Learned counsel to the claimant in his written address did not submit any issues for determination. His first submission was that there is no valid application before the court as the preliminary objection and memorandum of appearance were filed out of time. He referred to Order 9 Rule 1 and Order 8 Rule 5 (1) in support and contended that the preliminary objection is a demurrer which has since been abolished. He cited Fadlallah v Arewa [1997] 8 NWLR (Pt 518) 546, Danjuma v Kamona [2004] 44 WRN 135 at 156, Sogalola v INEC & ors [2000] 32 WRN 105 at 137, Balogun Ketu v Onikoro [1984] 10 SC 256 at 257, Henry Stephens Eng. Ltd v S.A. Yakubu [2009] 5-6 SC 1 at 60, Okochi v Animkwo [2004] All FWLR (Pt 200) 1524 and submitted that the defendant’s application is incompetent and ought to be refused for want of compliance with applicable rules procedure. On the issue of juristic persons, he argued that adequate description of the 1st defendant was given on the face of the complaint as “Mainstreet Bank Ltd formally Afribank Nig. Plc” and in paragraph 2 of the statement of facts. It was his contention that the 2nd and 3rd defendants are legal entities and staff of the 1st defendant who should be joined if the suit is to be effectively determined. He submitted that the court can at any stage of the proceedings order that the name of a party improperly joined be struck out and order a necessary party to be joined citing Peenok Investment Ltd v Hotel Presidentail Ltd [1982] 12 SC 1, Joseph Afolabi v John Adekunle [1983] 8 SC 98, Osasina v Ajayi [2004] 14 NWLR (Pt 894) 527, Uku & Ors v Okumagba & Ors [1974] 3 SC (incomplete citation). Learned counsel submitted that leave of court is not required to institute an action against Afribank Nigeria Plc or Mainstreet Bank. It was his submission also that the exhibits in support of this application are inadmissible as they are public documents which have not been certified as provided in the Evidence Act citing Fawehinmi v I.G.P. [2000] 7 NWLR (Pt 665) 481. He submitted that in determining whether a court has jurisdiction to entertain a matter, all that it has to look at is the statement of claim and not the writ. He cited Omma Nig. Ltd v Dyktrade Ltd [2007] 15 NWLR (Pt 1058) 576, Nnade v Okoro [1998] 1 NWLR (Pt 535) 573, Lahan v Lajoyetan [1972] 6 SC 190. On the issue of service of the originating processes, he submitted that the jurisdiction of this court is national, that it is a single jurisdiction throughout the Federation and as such there is no need for the endorsement on the complaint as provided by section 97 of the Sheriff and Civil Process Act since service was within the jurisdiction of the court. He argued that administrative lapses of the registrar in not marking concurrent originating processes should not be visited on the litigant citing Famfa Oil v A.G. Federation [2003] 18 NWLR (Pt 852) 453. He then urged the court to dismiss the application on the grounds that the objection is not properly before the court, leave of court is not required to sue Mainstreet Bank Ltd, the jurisdiction of this court is national, the court may at any stage order the names of any party to be joined and that if the claimant succeeds there will be a basis to approach any liquidator. Replying on points of law, learned counsel to the defendant submitted that Order 25 Rule 4 of the Rules of this court does not require a party seeking extension of time to expressly seek for a deeming Order in its application. He cited Nneji v Chukwu [1988] 3 NWLR (Pt 81) 184 at 208, Eravwodoke v U.B.T.H.M.B [1993] 2 NWLR (Pt 277) 590 at 599 and urged the court to hold that the memorandum of appearance and preliminary objection were properly filed and served. He further submitted that the law is clear to the effect that there exsists a distinction between a demurrer and a jurisdictional objection citing NDIC v C.B.N [2002] 7 NWLR (Pt 766) 272 where the Supreme Court clearly stated that the issue of jurisdiction is not a matter for demurrer proceedings, Rockshell Int’l Ltd v B.Q.S. Ltd [2009] 12 NWLR (Pt 1156) 640 at 670, Usman v Baba [2005] 5 NWLR (Pt 917) 113, Akintaro v Eegungbohun [2007] 9 NWLR (Pt 1038) 103 and Elabanjo v dawodu [2006] 15 NWLR (Pt 1001) 76 at 115. He submitted that the following cases cited by counsel to the claimant Sogaolu v INEC supra, Balogun Ketu v Onikoro supra, Adegoke Motors v Adesanya supra and Famfa Oil v A.G. Federation [2003] 18 NWLR (Pt 852) 453 supra do not support his submissions. Rather he submitted that an objection to jurisdiction ought to be taken at the earliest opportunity. Learned counsel again urged the court to discountenance the cases cited by the claimant on joinder of parties as this is not the case of the defendants. He submitted that an amendment cannot be made to substitute a juristic person for a non-juristic person and naming a non-juristic person as a defendant is not a mere misnormer, it is fatal to the action citing Agbonmagbe Bank Ltd v General Manger G.B. Ollivant supra, Emecheta v Ogueri [1996] 5 NWLR (Pt 447) 227. He submitted that the issue of admissibility or inadmissibility of documents does not arise at this stage of the proceedings as the documents annexed to the affidavit cannot be objected to until the hearing of the substantive suit. He cited Adejumo v Governor of Lagos State, Daggash v Bulama [2004] 14 NWLR (Pt 892) 144 at 232, Nwosu v Imo State Environmental Sanitation Authority [1990] 2 NWLR (Pt 135) 688, Udoro v Gov. Akwa Ibom State [2010] 11 NWLR (Pt 1025) 322. He then urged the court to discountenance the arguments of the claimant and strike out the suit for what of jurisdiction. Having considered the processes filed, the written submissions and authorities referred to, I adopt the sole issue submitted for determination by learned counsel to the defendants as it captures all the issues raised. I will however began with the preliminary issues raised by learned counsel to the claimant. On the 14th May 2012, the court made orders extending time to enable the defendants file their memorandum of conditional appearance, preliminary objection and also granted the defendants leave to file the said processes out of time. Raising the argument that the processes were filed out of time is therefore misplaced. I agree entirely with the submissions of learned counsel to the defendant that it is premature at this stage of the proceedings to raise and make heavy weather on the issue of admissibility or inadmissibility of documents and also agree with his submissions on the issue of demurrer raised by the claimant. A preliminary objection is an objection to be taken before the main action, the primary objective being to terminate the proceedings at the stage of the objection. The use of preliminary objection in challenging jurisdiction to the exclusion of proceedings in lieu of demurrer has been upheld in Alhaji Onibudo v Akibu [1982] 1 All NLR (Pt 1, 194, Odive v Obor & Anor [1974] 2 SC 18. The defendants have submitted that the claimant must seek the leave of court before commencing this action against Afribank Nigeria Plc being a company in liquidation as provided by section 417 of the Companies and Allied Matters Act (CAMA) CAP 20 LFN 2004. In proof of the fact of liquidation, the defendants have exhibited the official gazette revoking its banking licence and winding up order given on the 2nd July 2012 by Hon. Justice C. Archibong of the Federal High Court. The leave of court mentioned in section 417 of CAMA refers to the Federal High Court and not the National Industrial Court which has the effect circumscribing, impinging and derogating from the provisions of section 254C (1) (a) of the 1999 Constitution as amended to the extent that leave of the Federal High Court is required to commence proceedings in this court. In the case of Mrs Sylvia Ifeyinwa Ilodibe v Afribank Nig. Plc unreported Suit No. NIC/LA/55/2011, the ruling of which was delivered on January 27, 2012, this court held as follows: Regarding the claimant’s submission that section 417 of CAMA has the effect of circumscribing, impinging and derogating from the provisions of section 254C(1) (a) of the 1999 Constitution, as amended, to the extent that leave of the federal High Court is required to continue the proceedings in this court, it is necessary to reproduce the section. Section 254C(1) (a) of the 1999 Constitution provides as follows: Notwithstanding the provisions of section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; By virtue of the above provision, this court as a superior court of record, has been conferred or vested with exclusive jurisdiction to hear and determine civil causes and matters specified in 254C (1) (a) which includes labour, employment, conditions of service and matters incidental thereto, Section 254C (1) (b), (c), (d), (e), (f), (i), (j), (k), (l), (m) also specify other matters in which this court has been conferred with exclusive jurisdiction. The Federal High Court derives its exclusive jurisdiction to hear and entertain matters arising from the operation of the Companies and Allied Matters Act (CAMA) from the provisions of section 251 of the 1999 Constitution, as amended, which is subject to the provisions of section 254C (1). The limitation on the jurisdiction of the Federal High Court is as circumscribed in section 254C (1) (a-m) of the 1999 Constitution, as amended. By the doctrine of supremacy of the Constitution, the Companies and Allied Matters Act being a subordinate legislation is inferior to the Constitution which is the supreme law of the land. Section 1 (3) of the 1999 Constitution as amended provides that if any law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law is void to the extent of the inconsistency. Consequently, any attempt by section 417 of CAMA or any other law or subordinate legislation to rob this court its exclusive jurisdiction in terms of the purported need to seek the leave of the Federal High Court to commence or continue proceedings must be regarded as inconsistent with the provisions of section 254C (1) (a-m) of the 1999 Constitution, as amended, and is void to the extent of the inconsistency. I so hold. See Ibidokun v Adaralode [2000] 12 NWLR (Pt. 727) 268 and Nkwocha v Gov. Anambra State [1984] 1 SCNLR 634. I have not been shown any reason why I should depart from this decision and therefore hold that the claimant does not need to seek the leave of the Federal High Court or this Court to commence this action. On the issue of non compliance with section 97 of the Sheriffs and Civil Process Act, section 97 comes under Part VII of the Act with the heading “service of the process and enforcement of the judgments of the courts of the Federal Capital Territory, Abuja and the States throughout Nigeria.” The word “court” in this part is defined to mean a court to which Parts III, IV, V and VI applies. Only in Part III is “court” interpreted to include “High Court of the Federal Capital Territory Abuja or of the State” and “Judge” interpreted to mean a “Judge of the High Court. Part II of the Act however interpretes “Court” to include “a High Court and a magistrate’s court”. What I can deduce from the Interpretation sections is that the courts contemplated for the application of section 97 of the Sheriffs and Civil Process Act are specifically mentioned. For instance only in Part II is magistrate’s court mentioned and not in other parts. It can be seen that not all courts are covered by section 97 of the Sheriffs and Civil Process Act in terms of its application. Furthermore, a careful look at section 97 of the Sheriffs and Civil Process Act will reveal that while its first part may apply to this court, its second Part cannot; and statutes are to be construed holistically not isolatedly. Section 97 provides: Every writ of summons for service under this Part out of the state or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such state or the Capital Territory, have endorsed thereon a notice the following effect …………… (emphasis is mine). From this provision, references to State and Capital Territory implies territorial limitation in terms of the jurisdiction that the State High Courts or the High Court of the Capital Territory suffers from which this court does not in view of the provisions of section 21 of the NIC Act 2006 which has conferred the court with the power to exercise jurisdiction throughout the Federation. It is my humble view that this court is not contemplated for purposes of section 97 of the Sheriffs and Civil Process Act and therefore service of the General Form of Complaint and other originating processes on the defendants is proper and good service; and I so hold. On the issue of legal personality of the defendants, I find that the 1st defendant on the Form of Complaint is Afribank Nigeria Plc. Afribank Nigeria Plc is in existence as deposed to in paragraph 5 of the supporting affidavit as a legal person duly registered with the Corporate Affairs Commission. A company under a winding up proceeding is still a living legal person until it is dissolved. It still retains its legal personality and can be sued. The words “Now (Mainstreet Bank Ltd)” is used merely to adequately describe the 1st defendant Afribank Nigeria Plc and I so hold. The Supreme Court in the case of Iyke Medical Merchandise v Pfizer [2001] 10 NWLR (Pt 722) 540 at 555 to 556 categorised juristic persons as follows: Juristic persons who may sue or be sued eo nomine have been recognized to include: (a) natural persons, that is to say, human beings; (b) companies incorporated under the Companies Act; (c) corporations aggregate and corporations sole with perpetual succession; (d) certain unincorporated Associations granted the status of legal personae by law such as: (i) registered Trade Unions; (ii) partnerships; and (iii) friendly Societies or Sole proprietorships The 2nd and 3rd defendants named as Head, Human Capital Management and Managing Director are not juristic persons and are therefore struck off this suit. See Agbonmagbe Bank Ltd v General Manager G.B. Ollivant [1961] 1 NLR 161, Fawehinmi v NBA [1989] 2 NWLR (Pt 105) 640. The originating process and all other processes are to be amended to reflect only the name of the 1st defendant. For all the reasons given above, I hold that this court has jurisdiction to hear and determine this matter. The preliminary objection fails substantially and succeeds partially on the issue of juristic persons. The case is to proceed to hearing. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae