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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: FEBRUARY 12, 2015 SUIT NO: NICN/LA/372/2013 BETWEEN MR MUFUTAU ADEMOYE - Claimant AND SIXT RENT A CAR LIMITED - Defendant REPRESENTATION Folorunsho Ogunekun for the Claimant. M.E. Abebe for the Defendant. JUDGMENT The Claimant in this case filed his General Form of Complaint on 16/713. In it he sought the following reliefs: 1. An order that the Defendant should pay the followings to the Claimant forthwith: (a) Accident free Allowance - N90,000.00k (b) Medical Allowance - N120,000.00k (c) Three Months Un-paid Salaries - N120,000.00k Total =N=330,000.00k 2. An order that the payments should attract 15% interest. 3. An order that the Respondent should pay the sum of N5 Million (Five Million Naira) being the cost of General Damages to the Claimant. All other requisite processes as mandated by the Rules of this Court accompanied the Complaint. On the 27th of September 2013, Defendant filed its Statement of Defence. It accompanied same with its witness deposition on oath, List of witness, List of Documents and copies of the documents to rely on at trial. Defendant also made the following counterclaims against the Claimant: 1. A declaration that the Claimant negligently damaged the Defendant Counter claimant Toyota Avanza Car with Registration Number GC 621 LSR when he failed to cover Radiator of the said car. 2. The sum of N289,200.00 (Two Hundred and Eighty-nine Thousand, Two Hundred Naira) as special damage being the cost of repairs of the Toyota Avanza with Registration number GC 621 LSR negligently damaged by the Claimant. 3. The sum of N1,259,627.88 (One Million, Two Hundred and Fifty-nine Thousand, Six Hundred and Twenty-seven naira, Eighty-eight kobo) as special damage being loss of revenue the Defendant incurred as a result of the Damaged Toyota Avanza Car with Registration Number GC 621 LSR from April – September of 2013. 4. Interest of 21% of the Judgment sum from the date Judgment is entered and is liquidated by the Defendant Counterclaimant. The brief facts of this case as deducible from the pleadings filed are that the Claimant was employed as a Driver by Virtual Travel Network and Management Service Limited - a Car Leasing Company; that the Company obtained a franchise from SIXT GMBH Germany to operate in the name SIXT RENT A CAR; that the Claimant was assigned a Toyota Avanza Car with registration number GC 621 LSR and deployed to Nigeria Oil & Gas Company Limited (NAOC); that the Claimant negligently forgot to cover the radiator of the Car which led to the eventual damage of the top gasket of the engine; that the Claimant being aware of the damage absconded from work; that the Claimant was informed of his negligent act and that he then briefed Solicitors who made demands on the Defendant and then this suit. The trial of this case commenced on 17/1/14 when Claimant testified as CW1. Witness adopted his written deposition dated 16/7/13 as his evidence and tendered 5 Exhibits. The Exhibits were admitted and marked as Exh. MA1-Exh. MA5. Witness also adopted his Counter affidavit dated 11/11/13. Under cross examination witness stated that he was employed by Defendant on 8/8/11; that he stopped working for Defendant in May 2013; that Defendant did not pay his salary from February – April 2013; that he did not know what happened on 25/3/13; that he received a letter dated 10/5/13 from the Defendant and that he later consulted his Solicitor. Witness stated further that he did not tender any letter of resignation to the Defendant because the letter of appointment did not state that he had to; that from his letter of appointment he was not to receive medical allowance in cash; that since he had been working with Defendant he was never paid accident free allowance; that he did not abscond from Defendant; that Defendant did not pay his salary and that he had to cater for his family hence he sought for another job. According to the witness, he was entitled to his claim because he worked for the period stated; that Defendant did not pay his salary from January to April and that his salary was normally paid into his Bank account. In reexamination, witness confirmed receipt of the letter dated 10/5/13 from the Defendant on 3/6/13 and that he acknowledged receipt of the letter. On the 20/3/14, Defendant opened its case. It called one Mrs. Chinyere Ezejibulu as its witness. Witness adopted her written deposition on oath dated 27/9/13 and tendered 8 documents. 5 of the documents were marked Tendered and Rejected while the remaining 3 were admitted as exhibits and marked as Exh. D1, Exh. D2 and Exh. D3 respectively. Witness urged the Court to dismiss the case of the Claimant and grant the Defendant's Counterclaims. Under cross examination, witness stated that Exh. D2 was a genuine letter; that no year was written on it; that that was an omission; and that Claimant refused to acknowledge Exh. D2. Upon closure of case by either side this case was adjourned for adoption of final written addresses. Learned Counsel to the Defendant subsequently brought an application challenging the jurisdiction of this Court to hear and determine this case. Upon hearing the application, this Court in a considered Ruling noted that the issues raised in the application could be raised and canvassed in the final written addresses of Counsel and same dispose off with final Judgment. In order therefore to avoid further delay of the case Counsel on either side were directed to file their final written address accordingly. The Defendant's final written address was filed on 5/9/14. In it, learned Counsel raised 3 issues for determination as follows: 1. Whether the evidence adduced by the Claimant in support of his case entitles him to the grant of the reliefs being sought. 2. Whether the Claimant was employed by the Defendant. 3. Whether this honourable Court has the jurisdiction to entertain this suit in view of the fact that the Defendant is not a juristic person. Arguing issue 1, learned Counsel submitted that the evidence adduced by the Claimant could not entitle him to the reliefs sought. Counsel referred to letter of employment dated 8/8/11 and pointed out that while the letter of employment clearly stated the entitlement of the Claimant, Claimant did not show either by oral or documentary evidence that he is entitled to an accident free allowance of =N=15,000.00 per quarter. Counsel urged the Court to dismiss this claim. Respecting claim for medical allowance, Counsel submitted that the employment letter upon which the claim is based clearly states that the purported medical allowance could not be monitised as the employees of VTN have a group health insurance scheme. Finally on this issue, Counsel argued that claim for 3 months unpaid salaries were baseless and mere ploy by the Claimant to extort the Management of Virtual Travel Network and Management Services Limited. Counsel referred to payment advice of the Defendant for January and February 2013 addressed to Business Manager of First bank Nigeria Plc and in which the name of the Claimant was listed as number 8. Learned Counsel submitted that there are no evidence to support the claims of the Claimant, citing Cameroon Airlines v. Otuturu (2011)1-2 SC (Pt. 111). Counsel urged the Court to resolve this issue in favour of the Defendant. On issue 2, learned Counsel submitted that from the gamut of evidence before the Court it is obvious that Claimant was not employed by the Defendant. Counsel referred to Claimant's letter of employment which showed that Claimant was employed by the SIXT Nigeria Virtual Travel Network and Management Services Limited and not SIXT Rent A Car Limited which was sued by the Claimant. Counsel submitted that the letter of employment is the document evidencing the contractual relationship between the employer and the employee and that by the letter of employment tendered Defendant is not the employer of the Claimant. According to Counsel, the law is clear that a proper and competent party must be brought to Court before the Court can exercise its jurisdiction. Counsel cited Principal, Government Secondary School, Ikachi v. Ugbodu (2006)All FWLR (Pt. 299) 1420 at 1440-1441. Counsel urged the Court to hold that the Defendant was not the employer of the Claimant. Issue 3 is the determination of whether this Court has the jurisdiction to entertain this suit in view of the fact the defendant is not a juristic person. Arguing this issue, learned Counsel submitted that no action could be maintained against a non-juristic person before a Court of competent jurisdiction. Counsel submitted that the Defendant on record is not a juristic person. According to Counsel, the franchise agreement attached to the motion on notice dated 3/6/14 shows that the name of the Defendant is a trade name and the Company known as Virtual Travel Management Network Services Limited is the employer of the Claimant and not the Defendant on record. According to Counsel, no action can be maintained against the Defendant which is a registered trade name/trade mark in Germany. Arguing further, Counsel referred to the Claimant's letter of employment as showing that Claimant was not employed by the Defendant and that as such no action can be maintained against the Defendant. Learned Counsel submitted, citing Principal, Government Secondary School, Ikachi v. Igbudu (2006)All FWLR (Pt. 299) 1420 at 1440-1441, that it is the duty of the Claimant to ensure that he brings proper and competent party to the Court as failure to do so is fundamental to the jurisdiction of the Court. Learned Counsel urged the Court to first resolve the issue of jurisdiction as same is fundamental. On 18/9/14, Claimant filed his final written address. In it learned Counsel raised 6 issues in the following words - ''1. Can a party approbate and as well reprobate? 2. Can failure to cross examine be fatal to a party's case? 3. Does an admitted fact need further proof? 4. Can Counsel's address be substituted for evidence? 5. Is it not proper for he who asserts to proof? 6. Should a counsel mislead the court?'' Before going into the final written address of the Claimant as submitted by the learned Counsel, l desire to digress and comment on the said final written address. It is now beyond doubt that final written addresses play vital role in doing the justice of a case. It is in the final written address that learned Counsel must properly marshal their arguments in a cohesive and communicative manner. It is in the final written addresses that issues for determination are brought to the fore. Issues for determination as a matter of course must have relationship to the facts of the case. Their ultimate end must be to attain the justice of a case. Over the years an acceptable format has been found for couching issues for determination. The way and manner learned Counsel to the Claimant couched his issues for determination are certainly not in tandem with that accepted format. Unfortunately, learned Counsel did not even think it proper to ask the Court to determine whether or not he is entitled to his claims or whether or not the Court should dismiss the counter claims of the Defendant. I believe learned Counsel can learn one or two things from the address of the Defendant. I dare say that both the issues slated for determination and the argument put forward in support of same are both watery and devoid of substance. I have no hesitation in saying that it portends a bad example of advocacy. On issue 1 learned Counsel submitted that a party cannot approbate and at the same time reprobate and that Courts have condemned such approach, citing Abeke v. Odunsi (2013)All FWLR (Pt. 697) 661. On issue 2, Counsel submitted that ''the Claimant proved his case, documentarily and through oral testimony'' citing Onyia v. Onyia (2012)All FWLR (Pt. 616) 575-576. According to the learned Counsel, Defendant did not oppose the exhibits tendered and neither did it cross examine on same. Counsel further cited Sa'eed v. Yakowa (2013)All FWLR (Pt.692) 1655. With respect to issue 3, learned Counsel submitted that failure to cross examine by the Defendant tantamounts to admission and that admitted facts need no further proof, citing Oguanuhu v. Chiegboka (2013)All FWLR (Pt. 703) 1930. Arguing issue 4, learned Counsel submitted that Defendant's arguments do not hold water; that the arguments were not subjected to cross examination by the Claimant and that no documentary evidence was tendered and admitted as exhibits. Relying on Yahaya v. Saraki (2012)All FWLR (Pt. 656) 466, Counsel submitted that final address by Counsel cannot take the place of evidence no matter how brilliant. With respect to issue 5, learned Counsel relying on Belgore v. Ahmed (2013)All FWLR (Pt. 705) 250 submitted that he who asserts must prove. According to learned Counsel, ''in this instant case, the Defendant never tendered a C.A.C's declaration that the Defendant herein is not a juristic person''. On whether a Counsel should mislead the Court, learned Counsel submitted that Counsel to the Defendant hid his identity and rather shifted same to Claimant's Counsel. He submitted, relying on Agara v. Agunbiade (2013)All FWLR (Pt. 683) 1905-1906. Finally, Counsel urged the Court to grant the Claimant's prayers. On 17/10/14, learned Counsel to the Defendant filed a reply on points of law. The said Reply was dated 14/10/14. It was a 2-page document. I read the said Reply on points of law. I understood the contents of same. I find nothing new in the said reply worthy of being mentioned in this Judgment. Indeed, the said Reply on point of law is nothing but a mere re-argument of the issues already raised and canvassed in the final written address. This judgment was initially slated to be delivered on 15/1/15. Unfortunately, the Judiciary Staff Union of Nigeria (JUSUN) embarked on an industrial action from 5/1/15 to 25/1/15. Although this Judgment was ready as at that date for delivery it could not be delivered due to the reason stated. Hence Hearing Notices were issued and served on Counsel to attend Court today for this Judgment. I have read all the processes filed by learned Counsel on either side of the divide in this case. I listened with attention and understanding to the oral testimonies of witnesses called as well as the oral submissions of Counsel in Court. In addition to all this, I reviewed and evaluated all the exhibits tendered by either side. Having done all these, I set down the following 3 issues for the just determination of this case - 1. Whether or not this Court has jurisdiction to entertain this case. 2. Whether or not the Claimant is entitled to all or any of the reliefs sought. 3. Whether or not the Defendant is entitled to its counterclaim. The first issue as set out touches on the jurisdiction of this Court. I had stated earlier stated that an application was brought by the Defendant at the close of trial challenging the jurisdiction of Court. It is imperative that the issue of jurisdiction be sorted out so as not to render an exercise in futility whatever decision the Court may reach. Jurisdiction is the power which a Court has to adjudicate over a case before it. It is very fundamental. It is said to be akin to blood in human as well as animal, see UTIH & Ors v. Onoyivwe & Ors (1991) LPELR-3436 (SC) per Bello CJN. For a Court to adjudicate over a cause or matter without jurisdiction is tantamount to an exercise in futility. Quite apart from the requirement that a Court must be properly constituted as regards members and their qualifications and the subject matter of an action being within the jurisdiction of the Court, the cause or matter must also have been initiated by a due process of law for the Court to be vested with jurisdiction, see Madukolu v. Nkemdilim (1962)All NLR 587.A Court of law will certainly not be seised of a matter over a ghost or person who does not exist as far as the law is concerned. Thus, it is for a Plaintiff or Claimant to ensure that he brings not just a proper person but a person with legal status to Court to face legal proceedings. In the instant case, Exh. MA1 is the letter of employment given to the Claimant. That document is the basis of contractual relationship between the Claimant and his employer. That document has as its heading the name of the Defendant and Virtual Travel Network & Management Services Limited. For whatever reasons best known to the learned Counsel to the Claimant he did not join the latter Company in this suit. This is, unfortunate in spite of Exh. MA4 written by Virtual Travel Network & Management Services Limited, dated 10/5/13 ever before the filing of this case and delivered to the Claimant. The Defendant here had contended that it is not a legal entity; that it is merely a registered or trade mark name and that it does not have legal capacity to stand trial. The law is trite that even though a non juristic person puts in appearance in Court, it is not thereby prevented from objecting that it is not a legal person. See Njemanze v. Shell B.P, Port Harcourt (1966)1 All NLR 8. The response of the Claimant to the position of the Defendant on the legal status of the Defendant is that ''... the defendant never tendered a C.A.C's declaration that the Defendant herein is not a juristic person''. That, with respect is an escapist attitude. It is not for the Defendant to prove or adduce evidence that it is not a juristic person. The Defendant is not under any obligation to produce any declaration relating to its status. It is for the Claimant who has brought another to Court to satisfy the Court on the legal status of the party he has brought to Court. The position has always been that where a party argues that it is not a juristic person, the onus is on the party who institutes the action to show the Court that the party brought to Court indeed has the legal capacity to go through legal proceedings. After all, the evidential burden of proof remains unchanged that he who asserts must prove his assertion by credible and admissible evidence, see Famfa Oil Limited v. A.G. Federation & Anor. (2003) LPELR-1239 (SC). No Court will exercise jurisdiction over a non existing person or enterprise. To do so will be sheer waste of time and an exercise in futility. Claimant not having satisfied this Court that the Defendant is indeed a legal entity for the purpose of this suit, l decline the exercise of this Court's jurisdiction on this case. Having so held regarding issue 1, the consideration of issues 2 and 3 has become certainly unnecessary. To proceed to consider these issues will amount to dissipation of useful time and energy on unproductive venture. This Court will not do that. Finally and for the avoidance of doubt, the claims of the Claimants are dismissed in their entirety for lack of jurisdiction on the part of this Court to hear and determine same. In much the same vein, the counterclaims of the Defendant also fail for the same reason. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge