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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: February 11, 2015 SUIT NO. NICN/LA/561/2012 BETWEEN SCOTT T. MOREY - CLAIMANT AND CITYSCAPE INTERNATIONAL DEVELOPMENT PLC - DEFENDANT REPRESENTATION Oki Achika, for the claimant. Mrs R. U Nnamani, with A.I. Ani for the defendant. RULING By his General Form of Complaint filed on the 5th November, 2012 the claimant commenced this action seeking the following relief: The sum of $182,518.74 (One Hundred and Eighty Two Thousand, Five Hundred and Eighteen Naira, Seventy Four Kobo) or its equivalent in Naira with interest at the rate of 21% per annum from the 18th day of October, 2011 until judgment is delivered in this matter and thereafter at the rate of 10% per annum from the Defendant being unpaid wages, unpaid “true up” and unpaid reimbursable expenses outstanding and owed the Claimant by the Defendant. Accompanying the Complaint is the Statement of Facts, List of Witnesses, Statement of Witness on Oath, and List of Documents to be relied upon at trial. The defendant entered appearance, filed its Statement of Defence and Counter Claim, Statement of Witness on Oath and copies of Documents on 28th February, 2013. The Claimant filed a reply to statement of defence and a defence to the counter claim. After the parties had joined issues the defendant filed a motion on notice dated 16th June, 2014 which is the subject matter of this ruling praying for the following: 1. An order of the Court striking out the Claimant’s suit for want of jurisdiction to entertain same. 2. And for such further orders at this court may deem fit to make in the circumstances. The grounds of the objection are as follows: 1. That the Scott T. Morey who is the claimant in this suit is a person unknown to defendant/applicant as the signature of the within named Scot T. Morey is totally different from that of the person who worked as an employee of the defendant/applicant. 2. That the Court lacks jurisdiction to entertain this suit. The Preliminary Objection is supported by a 7 paragraph affidavit sworn to by Rita Uloko, a legal practitioner, to which is annexed 3 exhibits and a written address. In reaction, the claimant filed a counter affidavit deposed to by Victor Gwam, legal practitioner to the claimant on 30th September, 2014 and a written address. The defendant also filed a further affidavit deposed to by Andrew O. Lawani a legal practitioner and a reply on points of law filed on 5th November, 2014. Learned Counsel to the defendant raised the following issues for determination as follows: 1. Whether on preponderance of evidence before the court, the claimant who is the sole witness for the claimant, maker of the witness statement on oath dated 5th day of November, 2012 and the deponent to the same document thereof is the same person as the Scott T. Morey that contracted with the defendant/applicant. 2. And if the above (a) is in the negative, whether there is privity of contract between the claimant/respondent and the defendant/applicant in this matter. 3. Whether the court has jurisdiction to entertain this suit. She argued that it is highly improbable that it was the same Scott T. Morey who worked for the defendant that filed this suit because when the claimant was in the employment of the defendant he resided at Flat A4, 8/10 Onitana Road, Ikoyi, Lagos where he lived until he left and got a job with General Growth Properties Incorporated in the United States of America. That Scott T. Morey could not have stayed at 22/25 Broad Street, Lagos at the time this suit was filed as he was with General Growth Properties Incorporated then. She submitted that the claimant is not Scott T. Morey employed by the defendant. On the signature on the claimant’s witness statement on oath, counsel contended that there are material differences in the signature of the claimant as shown in his statement on oath and that made by Scott T. Morey who worked with the defendant. That it cannot be said that the signature emanates from the same person refering the court to Section 101(1) of Evidence Act, 2011, Innocent Uchenna Ikedigwe (TUGO) v. Wong Yui Fai [2012] 10 NWLR (Pt. 1308) Pg 413-414, Gboko v. The State [2007] 17 NWLR (Pt. 1063) 272, Abubakar v. Yar’adua [2009] All FWLR (Pt. 457) 1, Boye Industries Limited v. Sowemimo [2010] All FWLR (Pt. 521). Counsel submitted that there is visible verifiable proof that the claimant in this suit is not the same Scott T. Morey who was employed by the defendant as the signatures are materially different from every other signature of Scott T. Morey. She then urged the court to apply Section 101 (1) of the Evidence Act and dismiss the suit with costs. On issue two, counsel argued that it is an established principle of law that only parties to a contract can sue or be sued under the contract. He referred to Black’s Law Dictionary (8th Edition) for the definition of privity of contract and cited Kenneth Nwube v. Mr. Ignatius Ogbuach & Ors [2008] 2 NWLR (Pt. 1072) 471. Counsel contended that the claimant in this suit is a third party unknown to the defendant and is a stranger to the contract between it and Scott T. Morey. He referred the court to the case of Christaben Group Limited & Anor v. Mr. A.I Oni [2008] 11 NWLR (Pt. 1097) p. 119 to 120. He submitted that assuming but not conceding that the claimant filed this suit on behalf of Scott T. Morey there is nothing before the court by way of Power of Attorney empowering anyone to prosecute this matter on his behalf. He submitted that a court cannot confer upon itself jurisdiction in a matter where parties to a suit have no locus standi. He then urged the court to dismiss this suit for want of jurisdiction. Learned Counsel for the claimant raised one issue for determination as follows: whether this court upon confirming that the claimant instructed the firm of Victor C. Gwam & Co to commence this action, has jurisdiction to hear this matter. He submitted that from the exhibits attached it is clear that the claimant instructed the firm of Victor C. Gwam & Co. to commence this action and that the claimant swore to the witness statement on oath. He further submitted that upon a perusal of the Power of Attorney granted Victor Gwam by the claimant and the email dated 11th September, 2014 sent to Ese Okobia, it is clear that the person the defendant employed and presently owes unpaid wages is the same who has commenced this suit. He submitted that the argument of the defendant’s counsel that the signature on the claimant’s witness statement on oath is different from the signatures earlier signed by the claimant is frivolous and cannot form the basis of an objection to the identity of the maker of a document especially when the maker accepts the document as his deed. He relied on the case of Ezeonwu v. Onyechi [1996] 3 NWLR (Pt. 438) p. 499. He submitted that the signatures are the same. He urged the court to hold that the claimant is the same person the defendant entered an agreement with and presently owes unpaid wages, thus the proper parties are before the court. Replying on points of law, learned counsel to the defendant referred the court to Section 133 (1) and (2) of the Evidence Act, 2011 and submitted that the burden of proving the authenticity of the signature on the witness statement on oath has been shifted to the claimant. That the claimant also failed to establish evidence to disprove the differences in the usual signature of Scott T. Morey as against the signature of the claimant in his witness statement on oath. He submitted that unchallenged evidence is deemed admitted citing Adams v. A.G Federation [2006] 11 NWLR (Pt. 991) 348, A.G Anambra State v. Okeke [2002] 12 NWLR (Pt.782) p. 575, Lawson-Jack v. Shell Petroleum Development Co. Ltd [2002] 13. He submitted that the Power of Attorney and the counter affidavit are an afterthought and are inadmissible by virtue of the provisions of the Evidence Act being documents made by persons interested at a time when this suit is pending citing First Bank (Nig) Ltd v. Excel Plastic Industry [2003] 13 NWLR (Pt. 837) p. 228. Counsel submitted that the claimant sought to rely on an e-mail purportedly emanating from Scott T. Morey but failed to exhibit any such certificate as a condition precedent to the admissibility of the content of the email referring to Section 84(4) of the Evidence Act and Dr. Imoro Kubor & Anor v. Hon. Seriake Henry Dickson & Ors [2012] LPELR SC 369/2012. He submitted that the claimant failed to fulfill all requirements to the admissibility of the content of the email and he urged the court to discountenance same. Having considered the processes filed in this suit, the arguments of counsel and the authorities relied upon, the question is whether the issues of the identity of the claimant, the authenticity of the signature on the statement on oath and the Power of Attorney are preliminary issues to be determined at this stage of the proceedings. It is pertinent to restate the fact that the parties have completed pleadings and joined issues before this objection was filed. The issues raised are not preliminary issues to be resolved at this stage of the proceedings. They are issues which can only be properly determined after the matter has gone to trial and evidence adduced by the parties. Pleadings having been completed, the matter is ready for trial. I therefore find this objection to be a time wasting exercise. It is hereby dismissed. The matter is to proceed to trial. Costs of N5,000 awarded in favour of the claimant. Ruling is entered accordingly _____________________________ Hon. Justice O.A Obaseki-Osaghae Presiding Judge