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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Aghadu-Fishim - Judge DATE: February 10,2010 SUIT NO. NIC/LA/25/2009 BETWEEN 1. Mr. Sandeep Jayaswal - Claimant/Respondent 2. Em West Africa Limited Emperion A/S - Defendants/Applicants REPRESENTATION Victor Obaika for the claimant, and with him is Oluwaseyi Oni. I. A. Kokumo for the defendants and with him are Adetunji Idowu and Mrs. Catherine Animashaun. RULING This is a preliminary objection brought by the defendants/applicants by motion on notice dated 24th August 2009 pursuant to Order 11 Rule l(i) of the National Industrial Court Rules 2007 and under the inherent jurisdiction of this court seeking the following orders: 1. An order of the Court dismissing/striking out this suit on the grounds that the Court lacks jurisdiction to entertain the action. 2. Alternatively, an order of the Court striking out or staying further proceedings in this suit until the claimant complies with Clause 16 of the service agreement between the claimant and the 2nd defendant on arbitration. 3. An order of the Court striking out the name of the 1st defendant herein on the ground that the 1st defendant is not a necessary party to this suit. 4. Alternatively, an order of the Court striking out this suit as against the 1st defendant on the ground that it discloses no reasonable cause of action against the 1st defendant. 5. AND for such order or further orders as this Court may deem fit to make in the circumstance. The grounds upon which the preliminary objection is brought are - 1. That the statement of claim (facts) and all other court processes are incurably bad not having been signed by a person known to law but by Obaika & Co. a body not known to law. 2. That the contract of employment otherwise known as service agreement between the claimant and the 2nd defendant was entered into in Denmark and by virtue of Clause 16 of the service agreement between the claimant and the 2nd defendant disputes shall first be settled by negotiation failing which they are to be settled according to Danish Law. 5. That the 2nd defendant is unknown to Nigerian Law being a foreign company registered under Danish Law with its registered office at Symfomvej 34 2730 Ilerlev, Denmark Copenhagen, Denmark. 6. That the 1st defendant is a limited liability company duly registered under the laws of Nigeria and was not a party or privy to the service agreement between the claimant and the 2nd defendant. In support of the motion is a four-paragraphed affidavit sworn to by Olaolu Ogbeyemi a litigation clerk on the 24th August 2009 to which is attached three exhibits marked A, B, C. The claimant/respondent filed two counter-affidavits. The first is a three-paragraphed counter-affidavit sworn to by Oluwaseyi Oni, a legal practitioner, dated 24th August 2009 to which is attached eight exhibits marked A - H. The second counter-affidavit is four-paragraphed and is deposed to by Funmilola Omoyiola, a legal practitioner, and attached to it are five exhibits marked A - F. Parties agreed to file and exchange written addresses. The defendants/applicants' written address is dated 23rd September 2009 while the claimant/respondent's written address is dated 9th October 2009. The claimant/respondent in his written address and arguments stated that he was relying on the second counter-affidavit sworn to by Funmilola Omoyiola. Both parties adopted and relied on the arguments contained in their written addresses. The claimant/respondent did not frame any issues of his own for determination but rather responded to the issues raised by the defendants/applicants. Learned counsel to the defendants/applicants commenced his submissions by relying on the facts deposed to in the supporting affidavit particularly paragraph 3(i) and (vi). He raised five issues for determination as follows - 1. Whether the entire suit is competent having regard to the fact that the court processes filed in this suit in particular the statement of claim (facts) was signed by Obaika & Co. not being a legal practitioner admitted to practice law in Nigeria. 2. Whether the 2nd defendant a foreign registered company can be sued here in Nigeria in respect of a contract of service entered into between it and the claimant in Copenhagen Denmark, the breach of which if at all also took place in Copenhagen Denmark. 3. Whether the claimant is not precluded from instituting this action until he has complied with the condition precedent on arbitration as provided in Clause 16 of the contract of service. 4. Whether the 1st defendant is a necessary party to this suit having regard to the reliefs set out in the claimant/respondent's statement of claim. 5. Whether the statement of claim filed in this case discloses any reasonable cause of action against the 1st defendant In arguing issue 1, learned counsel to the defendants/applicants referred to the processes filed by the claimant/respondent particularly the statement of claim (facts) and the motion on notice for interlocutory injunction both dated 4th August 2009 and submitted that both processes are incurably bad not having been signed by a person admitted to practice law in Nigeria, lie further submitted that for a process of court to be competent or valid, it must be signed by a legal practitioner whose name is on the roll and no other person or body. He cited the case of Okafor & ors v. Nweke & ors [2007] 3 SC (Ft. 11) 55 and argued that the contention of the claimant in his counter-affidavit of 4th September 2009 that failure of the legal practitioner who signed the processes to include his name is a typographical error shows that counsel does not appreciate the position of the law on this point. Learned counsel submitted that the question the court is called upon to answer is whether Obaika & Co is a legal practitioner recognized by the law. That if the answer to this question is negative, the court is left with no other alternative than to strike out these processes a fortiori the entire suit for being incompetent. He then urged the court to resolve this issue in favour of the defendants/applicants. In response learned counsel to the claimant/respondent conceded that by omitting the name of the legal practitioner suing on claimant/respondent's behalf, Order 4 Rule 4(3) of the Rules of this court 2007 which requires all processes to be signed by the legal practitioner where claimant sues through a legal practitioner has been contravened. He urged the court to treat this non-compliance as a mere irregularity by virtue of the provisions of Order 5 Rules 1 & 3 of the Rules of this court and in the interest of justice so that the claimant/respondent's action could be heard. Learned counsel cited the case of Olaniyan v. Oyewole [2008] 5 NWLR (Pt. 1079) 114 at 138 - 139 H - B and Obiechefu v. Governor, Imo State [2008] 14 NWLR (Pt. 1106) 22 at 48 A-D in support. He urged the court to overlook the non-compliance in order not to sacrifice the claimant/respondent's constitutional right to fair hearing and resolve this issue in favour of the claimant/respondent. On issue 2, counsel to the defendants/applicants referred to paragraphs 3, 4, and 13 of the statement of claim (facts) and submitted that before the claimant can bring the 2nd defendant to court, he must show that the 2nd defendant is a company to which the provisions of chapter 3 of the Companies and Allied Matters Act apply being that the 2nd defendant is a foreign registered company. He also referred the court to Order 7 Rule 7 of the Rules of this court and argued that the fact that 2nd defendant is the parent company of the 1st defendant cannot take the place of law as the 1st defendant, being a limited liability company, in law has a separate legal personality from the 2nd defendant. The defendants/applicants' counsel further argued that since the contract of service was entered into in Copenhagen, Denmark and the breach complained of by the claimant also originated in Copenhagen, Denmark, the claimant/respondent's cause of action is in Denmark and not Nigeria. He referred to Exhibit G attached to the counter-affidavit and the defendants/applicants' Exhibit C attached to the affidavit in support of this motion. Counsel finally submitted that the 2nd defendant being a registered foreign company, and the fact that the cause of action arose in Copenhagen Denmark, this court cannot entertain this action. In response to issue 2, learned counsel to the claimant/respondent referred the court to paragraph 2(g) of the counter-affidavit and submitted that the event that gave rise to this cause of action is the dismissal of the claimant/respondent by the dismissal letter marked Exhibit F, which was served on the claimant in Lagos by the agents of the 1st defendant at the claimant's residence in Lagos. Counsel argued that the claimant/respondent is not in this action challenging his initial termination with three months notice which took place in Copenhagen Denmark on July 13, 2009 but his subsequent dismissal without notice which occurred in Lagos on July 30, 2009. He argued that the claimant/respondent carried out all his duties as Managing Director of the 1st defendant in Lagos as a resident in Nigeria. He referred to Exhibit D, which is the claimant/respondent's residence permit. He cited the case of Owie v. Ighiwi [2005] 5 NWLR (Pt. 917) 184 at 214 E - G and further submitted that the event that completed the cause of action after which the claimant/respondent began to maintain his action arose in Lagos Nigeria. Learned counsel also submitted that Order 7 Rule 7 does not in anyway preclude a claimant from bringing an action against a foreign company because it refers to the mode of service of processes on foreign companies carrying on business in Nigeria where the cause of action arises within the court's jurisdiction. That the 2nd defendant is carrying on business in Nigeria through its subsidiary, the 1st defendant, in compliance with section 54 of the Companies and Allied Matters Act and the claimant/respondent can, therefore, bring an action against the 2nd defendant. Counsel finally urged the court to resolve this issue in favour of the claimant/respondent. On issue 3, learned counsel to the defendants/applicants referred to the service agreement between the claimant and the 2nd defendant, which is Exhibit A attached to the supporting affidavit. He drew the court's attention to clause 16 which he argued provides that in the event of a dispute it should be resolved first through negotiation and in the event that this foils, then through arbitration. Counsel argued that it is wrong in the light of this provision for the claimant/respondent to approach the court when no attempt has been made at arbitration and submitted that the claimant/respondent's action is premature and cannot be heard by this court. He cited the case of Omaliko v. Awachie [2001] FWLR (Pt. 43) 269 and finally urged the court to resolve this issue in favour of the defendants. In reply, learned counsel to the claimant/respondent submitted that this action cannot be referred to any arbitral proceedings as the 1st defendant is not a party to the arbitration agreement between the claimant and the 2nd defendant. He cited the cases of Xigeria LXG Ltd v. ADIC Ltd [1995] 8 NWLR (Pt. 416) 677 at 692F, Hererick H. P. Barlay & anor v. FSB International Bank Plc & anor (unreported) Suit No. CA/L/106/2000 delivered on the 22nd April 2004 and urged the court to resolve this issue in favour of the claimant/respondent. In arguing issue 4, the defendants/applicants' counsel posed the question whether the court can effectually and completely determine all the reliefs set out in the statement of claim (facts) without the presence of the 1s' defendant. He argued that the presence of the 1st defendant is not necessary in the determination of the reliefs in the contract; the breach of which the claimant/respondent is complaining of was made between the claimant and the 2lui defendant. That to determine the case, recourse will have to be made to the contract of service between the claimant and the 2nd defendant, which, he submitted, has nothing to do with the lsl defendant. Counsel cited the cases of Dunlop v. Selfridge 119511 AC 847, Green v. Green [2001] FWLR (Pt. 76) 795 at 817 and finally submitted that this case can be effectually and completely settled without the presence of the 1st defendant. He urged the court to strike out the name of the 1st defendant from this suit and resolve this 4th issue in its favour. In reply to this issue the claimant's counsel argued that the 1st defendant is a necessary party to this suit as the subject matter of this action is the dismissal and subsequent harassment of the claimant as the Managing Director of the 1st defendant. He referred to paragraphs 12, 15 and 17 of the statement of claim (facts) which contain complaints against the 1st defendant and cited the case Ohiwaniyi v. Adewumi [2008] 13 NWLR (Pt. 1104) 387 at 421 A - B and In re ND1C: Mr.T. Adesanya & anor v. Mr. J. Lawal & 2 ors [2007] 7 NWLR (Pt. 1032) 54 at 68 G - H. Finally, counsel submitted that the 1st defendant is an integral party to this action and urged the court to resolve this issue in claimant/respondent's favour. On issue 5, the defendants/applicants' counsel adopted his arguments in respect of issue 4. 1 le submitted that the court has the inherent powers to strike out any pleading which discloses no reasonable cause of action or defence. That the claimant has not alleged any breach of any of his contractual rights under the service agreement made between him and the 2nd defendant by the 1st defendant, who neither employed nor dismissed him. He cited Ibrahim v. Osini [1988] 1 NSCC 1184 at 1191 paragraphs 5 - 45 and urged the court to resolve this fifth issue in favour of the defendants/applicants and hold that the claimant/respondent's statement of facts discloses no reasonable cause of action against the 1st defendant, and strike out in its entirety the claimant's case. In response to issue 5, the claimant/respondent's counsel also adopted the arguments in respect of issue 4 and urged the court to resolve this issue in favour of the claimant/respondent and to decline in its entirety the application of the defendants/applicants. A careful consideration of the matter at hand at this preliminary stage reveals two issues for the determination of this court. The first is whether Obaika & Co, which signed the originating process, is a person entitled to practice as a barrister and solicitor and appears on the roll of legal practitioners. The second issue is whether clause 16 in the service agreement is a condition precedent which precludes the claimant from instituting this is action. On the 4th of August 2009, the claimant/respondent's counsel filed a complaint accompanied by a statement of claim (facts), copies of documents to be relied on, the list of witnesses to be called, a motion ex parte and a motion on notice for interlocutory orders. Apart from the General form of complaint (Form 1), which was not signed by the claimant/respondent's counsel, each of the other processes were signed by - Defendants Solicitors Obaika & Co. 3B, 17-19 Boyle Street Onikan, Lagos. Order 4 Rule 4(3) of the Rules of this court 2007 provides that- An originating process shall be signed by the claimant or his or her legal practitioner where the claimant sues through a legal practitioner. Section 2(1) of the Legal Practitioners Act Cap. L11 LFN 2004 provides as follows - Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. Section 24 of the Legal Practitioners Act defines "Legal Practitioner" to be - a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. The combined effect of the three provisions is that a person entitled and qualified to practice as a legal practitioner must have his name on the roll to enable him sign an originating process in a court of law. Where his name is not on the roll, he cannot engage in any form of legal practice in Nigeria. This invariably means that only human beings actually called to the Bar can practice and sign court processes. The originating process was signed in the firm name of Obaika & Co without an additional indication of the name of the practitioner who is a member of the firm handling the matter. Obaika & Co is not a legal practitioner recognized by the above mentioned provisions of the Legal Practitioners Act. The claimant/respondent's counsel prayer that .this be treated as an irregularity and the court direct a departure from the rules overlooks the fact that what is in issue is not just a mere compliance with this court's Rules. There is also the issue of compliance with the provisions of the Legal Practitioners Act. In the Supreme Court decision of Okafor & 2 ors v. Nweke & 4 ors [2007] 3 SC (Pt. 11) 55 at 68, His Lordship Oguntade, JSC had this to say - The argument that it is an over adherence to technicality to annul the process improperly signed and filed by "JHC. Okolo & Co SAN" fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with court rules. Furthermore, we observe that Obaika & Co also signed as defendant's solicitors rather than claimant's solicitors on the originating process complained of. The conclusion that must be reached is that all the documents mentioned above which make up the originating processes are incompetent in that they were not issued by a legal practitioner known to law. On the claimant/respondent's prayer that it is in the interest of justice that this action be heard, we are guided again by the Supreme Court decision in Okafor & ors v. Nweke & ors, supra, where His Lordship Onnoghen, JSC at 65 paragraph 25 - 40 stated as follows - On the other side of the judicial scale in the balancing act, is the issue of substantial justice which I said had been adequately taken into consideration in this ruling. The conclusion that must be reached in this matter is that the documents are incompetent and are struck out leaving the applicants with the opportunity to present a proper application for consideration by this court. The effect of the ruling is not to shut out the applicants but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of anything goes'. Consequently, there is no need for us to go into the merits or otherwise of issues 2, 4 & 5 which are in any case not issues for a preliminary objection but issues of defence to be raised at the trial of the matter. In respect of issue 3, it is necessary to reproduce clause 16 of the service agreement, which is as follows -16 Arbitration and governing law 16.1 Should a dispute arise between the Managing Director and the Company, the parties shall attempt to settle the dispute by negotiation. 16.2 Should the parties not be able to reach an amicable agreement, the dispute is then to be settled according to Danish law by arbitration according to the Danish Rules on Arbitration of 14 June 2005, and cannot as such be brought forward to the ordinary courts. In Obemhe v. Wemabod Estates Ltd [1977] 11 NSCC 264 at 271, the Supreme Court reviewed the law relating to the effect of arbitration clauses in the following words - ...arbitration clauses, speaking generally, fall into two classes. One class is where the provision for arbitration is a mere matter of procedure for ascertaining the rights of the parties with nothing in it to exclude a right of action on the contract itself, but leaving it to the party against whom an action may be brought to apply to the discretionary power of the court to stay proceedings in the action in order that the parties may resort to that procedure to which they have agreed. The other class is where arbitration followed by an award is a condition precedent to any other proceeding being taken, any further proceedings then being, strictly speaking, not upon the original contract but upon the award made under the arbitration clause. Such provisions in an agreement are sometimes termed "Scott v. Avery" clauses so named after the decision in Scott v. Avery (1856) 5 H.L. Cas. 811.... Following from this authority, we find that both clauses 16.1 and 16.2 are a condition precedent to the instant proceedings. Even assuming the originating processes were competent, the claimant must first exhaust the settlement mechanism of negotiation and arbitration before approaching this court; and even at this, the claimant may only sue on the arbitration award itself. All documents comprising the originating processes dated and filed on 4th August 2009 are hereby struck out. For all the reasons given, the case is incompetent and so is accordingly struck out. We make no order as to costs. Ruling is entered accordingly. Hon. Jusice R. H Kanyip Presiding Judge Hon. Justice F. I. Kola-Olalere Hon. Justice O. A. Obaseki-Osaghae Judge Judge Hon. Justice J. T. Agbadu-Fishim Judge