IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: May 13, 2019 Suit No: NICN/PHC/134/2017
1. Intels Nigeria Limited Claimants/Respondents
2. Orlean Invest Africa Limited
Sajibu Krishnan ````` Defendant/Applicant
A. N. Muoma Esq. with U. Ukwuona – Okeke Esq. for the Claimants/Respondents.
Chris Wonu for the Defendant/Applicant.
1. On February 20, 2017 the claimants filed this complaint claiming against the defendant:
US$3,000,000.00 (Three Million United States Dollars), or its Naira equivalent at the time of judgment being special damages for the drunken, unruly, violent demeanour/conduct of the Defendant while in the employment of the Claimant which said demeanour/conduct seriously tarnished the Claimants’ business image/reputation amongst the Claimants’ clientele leading to the loss of business and income by the Claimant in the Claimants’ business operations.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered Conditional Appearance through his counsel and filed his statement of defence with other defence processes in compliance with the Rules of this Court; see pages 52 to 103 of the record.
2. However, on December 5, 2018; the defendant filed a Notice of Preliminary Objection brought pursuant to section 254C (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 7 of the National Industrial Court Act, 2006; Order 30 Rule 18 (1); Order 38 Rule 32; Order 55 Rules 1, 4 & 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 praying for the following orders:
i. An order dismissing in limine or striking out, the instant suit for abuse of court process, gross incompetence and want of jurisdiction.
ii. Punitive cost of Seven Hundred and Fifty Thousand Naira (N750,000.00) against the Claimants/Respondents for instituting the instant abusive, frivolous and vexatious suit;
iii. Such other orders as to cost as the Court may deem fit to make in favour of the Defendant/Applicant.
3. The notice of preliminary objection is premised on the following grounds:
i. Abuse of court process by:
a. Oppression and intimidation of the Defendant/Applicant to drop his claims against the Claimants/Respondents in Claim No: 2207185/2017: Mr. Sajibu Krishnan v. Orlean Invest Management Resources Ltd & 2 Ors then pending at the London Central Employment Tribunals, United Kingdom; and
b. Forum shopping in Nigeria, a claim that was expressly agreed to be ventilated in the United Kingdom.
ii. The endorsement of claim on the Complaint and Statement of Facts are incurably scandalous, frivolous and vexatious and thus liable to be dismissed under Order 30 Rule 18(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017;
iii. The claim for loss of business reputation is a claim in tort quite outside the jurisdiction of the National Industrial Court of Nigeria under section 254C (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 7 of the National Industrial Court Act, 2006;
iv. Want of reasonable industrial cause of action or trade dispute as there is no employer-employee relationship between the parties on record.
v. Want of locus standi as the Claimants/Respondents are not parties to the contract of employment between the Defendant/Applicant and Orlean Invest Africa (BVI) Limited.
vi. The suit is liable to be dismissed or struck out with punitive or indemnifying cost against the Claimants/Respondents.
4. In support of the application is a 14 paragraphed affidavit deposed to by one Nialigwe Sunday together with 7 documents and a written address.
In the written address, counsel formulated issues for determination this way:
i. Whether the present suit is an abuse of court process?
ii. If issue 1 is answered in the affirmative, whether the Applicant is entitled to cost?
iii. If issues 1 and 2 are answered in the negative, whether the instant suit is competent to invoke the jurisdiction of this court?
5. Arguing issue one; counsel maintained that the present suit is an abuse of court processes as samet was instituted to Harass, oppress and intimidate the Applicant. He continued that the case was initiated for forum shopping; it is scandalous, frivolous and vexatious. Referring to Exhibits 1, 2 and 3 on record; counsel contended that the Applicant was employed by a British Virgin Island Company in 2005 and 2012 but that he was seconded to the Respondents in Nigeria and that the Applicant remained in the employ of the said foreign employer from 2005 until 2017 when his employment was dismissed on 14/02/2017 via Exhibits 4 and 5. The applicant continued that his contract of employment contains an express and exclusive choice of United Kingdom jurisdiction in the resolution of any dispute between him and his said employer. Piqued by his dismissal, the Applicant invoked the terms of the said contract of employment and commenced proceedings against the Respondents at the London Central Employment Tribunals vide Claim No: 2207185/2017: Mr. Sajibu Krishnan v. Orlean Invest Management Resources Ltd & 2 Ors. The Respondents, as defendants in the London Tribunals, entered appearance in London and defended the said suit.
6. Counsel went on that it was while that suit was pending in the London Central Employment Tribunals that the Respondents then abandoned the exclusive choice of United Kingdom jurisdiction to launch the instant suit for US3million against the defendant/applicant in Nigeria on 20/12/2017 mainly to harass, oppress, intimidate the Applicant so that he drops his employment claims against them at the London Court. Counsel submitted that it is an abuse for the Claimants (as defendants in the London proceedings) to file the present suit against the Defendant (who was the claimant in the London proceedings) in respect of the same subject matter of the contract of employment; citing Akilu v. Fawehinmi (No. 2)  2 NWLR (Pt. 102) 122 at 171H-172A SC; Turner v. Grovit  3 All ER 616 at 625 CA;  UKHL 65 at [24-26]; Joint Stock Asset Management Company Ingosstrakh-Investments v. BNP Paribas SA  EWCA Civ 644 ; Owners of M.V. Lupex v. Nigerian Overseas Chartering and Shipping Ltd  15 NWLR (Pt. 844) 469 at 490-491 SC and Attorney-General of Anambra State v. Uba  15 NWLR (Pt.947) 44 at 68G CA.
7. On forum shopping, counsel submitted that the Respondents are quite aware of the exclusive choice of United Kingdom provision of the contract of employment for resolving dispute between the parties mutually agreed in the contract of employment, which they abandoned citing Nika Co. Ltd v. Lavina Corporation  16 NWLR (Pt. 1114) 509 at 543 SC and Mailantarki v. Tongo  LPELR-42467(SC).
On the scandalous, frivolous and vexatious suit, counsel referred to the claimants’ claim before the court and maintained that nothing can be more frivolous than the instant claim of USD3million special reputational damages without a single particular of the special damages. He referred the Court to Order 30 Rule 18(1) (b) & (d) of the National Industrial Court (Civil Procedure) Rules, 2017 and to the cases of Labode v. Otubu  7 NWLR (Pt. 712) 256 at 234D-F and Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt.724) 369 at 390 SC. He urged the Court to so hold.
8. Arguing issue two of whether the defendant is entitled to punitive cost of N750,000.00; counsel submitted that there is evidence on record that the Applicant incurred litigation cost of N750,000.00 to defend the instant suit referring to Exhibit 6 and that the Respondents and their counsel knew that this action ought to be filed in London, but they filed it in Nigeria as a result of which the applicant has incurred the litigation cost of prosecuting this case in Nigeria. To counsel, the applicant is entitled to cost in the circumstance of this case, relying on Order 38 Rule 32 of the Rules of this Court and the case of Bulet Int'l (Nig.) Ltd v. Olaniyi  LPELR-42475 (SC) at 41-43, 49-50.
In the alternative to punitive cost, counsel referred the court to Order 55 Rules 1, 4 and 5 of the Rules of this court, which gives the court the discretionary powers to award indemnifying cost, at the time of delivering the judgment or when making an order and in fixing the amount to award. He urged the Court to invoke this rule alternatively.
9. Arguing issue three of whether the Court has jurisdiction to handle this case, counsel submitted that this Court lacks the jurisdiction to entertain the instant case on two (2) grounds namely: (a) want of reasonable industrial cause of action; and (b) want of locus standi.
On Want of reasonable industrial cause of action, counsel submitted that there is no reasonable industrial cause of action on two grounds: (i) There is no employment dispute between the parties; and (ii) The claim for loss of business reputation and goodwill is founded on tort.
On the ground of no employment dispute between the parties: counsel referred the court to paragraph 3 of the Statement of Facts, Exhibits 1 and 2 and submitted that there is no justiciable employment dispute or cause of action between the parties on record that is capable of activating the jurisdiction of this court under section 254C(1) of the 1999 Constitution and section 7 of the National Industrial Court Act, 2006; neither is there any trade or industrial dispute between the parties under section 28 of the Trade Dispute Act. He also cited Rev. Dr. V. C. Iwu v. Board of Trustees Assemblies of God, Nigeria unreported Suit No: NICN/OW/41/2014 delivered on 12th of February, 2015 by Hon. Justice O.Y Anuwe of the National Industrial Court of Nigeria, Owerri Division.
10. On the ground of loss of business reputation and goodwill, counsel contended that this is founded on tort and submit that the claim for special damages for alleged loss of business reputation cannot be planked under any of the provisions of section 254C of the 1999 Constitution as amended and under section 7 of the National Industrial Court Act, 2006. To counsel, the present suit does not come within the labour-related jurisdiction of this court. He submitted that the law is settled that a claim for loss of reputation is a cause of action in the tort of defamation, citing Foaminol Laboratories Ltd v. British Artid Plastics Ltd  2 All ER 393 at 399H; Katto v. Central Bank of Nigeria  6 NWLR (Pt. 607) 390 at 410F-H SC; Bisong v. University of Calabar  LPELR-41246 (CA) 1 at 37-38 and Godwin Agbone v. Nulec Industries Ltd unreported Suit No: NICN /LA/427/2012 delivered Lagos Division by Ho. Justice B.B. Kanyip.
On want of locus standi, counsel submitted that there was no employer-employee relationship between the parties on record. That there is no privity of employment contract between the parties; thus, the Respondents have no locus standi to commence the instant suit by allegedly planked on a contract of employment they were strangers to, referring to Exhibit 3; Basinco Motors Ltd v. Woermann-Line  13 NWLR (Pt. 1157) 149 at 180 SC and Eze v. Nigerian Airspace Management Agency  LPELR-41453 (CA) 1 at 14-16.
11. Responding to the Notice of Preliminary Objection, counsel to the claimants filed a 13 paragraphed counter affidavit deposed to by Eke Okwum Eke and attached one exhibit with it together with a written address. In the address, counsel formulated the following issues for Court’s determination:
i. Whether the Claimants’ suit before this Honourable Court is an abuse of process?
ii. Whether this Honourable Court is vested with the jurisdiction to entertain the Claimants suit?
iii. Whether this Honourable Court can exercise its power of transfer under Section 24(2) of the National Industrial Court Act, 2006 and Order 62, Rule 1 of the National Industrial Court Rules, 2017, if it finds that it has no jurisdiction to entertain the Claimants suit?
12. Arguing issue one, counsel submitted that an abuse of process is a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice citing African Continental Bank Plc v. Damian Ikechukwu Nwaigwa & Ors  1 SCNJ, 162 at 170-171 and Peoples Democratic Party (PDP) & Another v. Chief Victor Umeh & Ors  2 SCNJ, 157 at 185. He went on that the reliefs sought in the multiple suits must be the same and that the multiple suits must have been instituted by the same Plaintiff(s)/Claimant(s); referring to R-Benkay Nigeria Limited v. Cadbury Nigeria Plc.  3 SCNJ, 150 at 167.
Counsel argued further in the instant case that the issue or question of an abuse of process by multiplicity of suits by one and the same person(s) against the same opponent(s) does not arise. To him, the London Employment Tribunal Suit No. 2207185/2017 and the instant case before the National Industrial Court of Nigeria were not instituted by the same person as Plaintiffs/Claimants. He continued that the parties, reliefs, subject-matter and issues in the two suits are not the same and that the two suits ran concurrently or simultaneously until the London Suit No. 2207185/2017 was dismissed on the 9th March, 2018. He urged the Court to hold that this suit is not an abuse of Court’s process.
13. Arguing issue three of whether this Court can transfer the case, counsel submitted that the determination of jurisdiction is based on the writ of summons and the averments on the statement of claim citing Barrister Ismaeel Ahmed v. Alhaji Nasiru Ahmed & Ors  7 SCNJ, 274 at 321. To counsel the cause of action in this suit is the damage caused to the Claimants by the Defendant in the course of the latter’s employment with the Claimants. He continued that the Defendant has not denied working for the Claimants and that issues have been joined on the pleadings..
In addition, counsel referred the Court to section 24(2) of the National Industrial Court Act, 2006 and Order 62, Rule 1 of the National Industrial Court Rules, 2017 and went on that assuming but not conceding the this Court has no jurisdiction to entertain this suit, he maintained that the Court can transfer the suit to the appropriate court, being the High Court of the Rivers State, for determination; maintaining that where there is a right there is a remedy (Ubi Jus Ibi Remedium). He urged the court to answer Issue 3 in favour of the Claimants/Respondents and to transfer the Case to Rivers State High Court instead of striking it out or dismissing it.
14. COURT’S DECISION
I have gone through the facts of this case as endorsed on the complaint, the averment in the statement of facts and as deposed to in the affidavit in support and in counter of this application; together with the argument of counsel in support and in counter of this application. From all of this, I am of the considered view that the following issues need to be resolved by the Court between the parties in this application:
i. Whether or not this Court has power to handle this case in view of the jurisdiction clause in the terms and conditions of agreement between the parties or to transfer the matter to Rivers State High Court as requested.
ii. Whether or not this matter is an abuse of court process.
iii. Whether or not the defendant/applicant is entitled to cost.
15. Before going into the merit of this application, it is pertinent to make some remarks. Firstly, counsel to the defendant/applicant copiously referred the court to foreign cases of Turner v. Grovit  3 All ER 616 at 625 CA;  UKHL 65 at (24-26); Joint Stock Asset Management Company Ingosstrakh-Investments v. BNP Paribas SA  EWCA Civ 644 ; Foaminol Laboratories Ltd v. British Artid Plastics Ltd  2 All ER 393 at 399H. The law in Nigeria is that foreign authorities are no longer binding on Nigerian courts in resolving issues before them. This is because, these foreign authorities of greatest learning cannot supplant the Nigerian case laws, which are rightly decided on issues coming before these courts. Besides, Nigerian laws have developed to a large extent, beyond the necessity of always having to cross the ocean on a voyage of discovery to find compelling authorities for the adjudication of our Courts. The only exception is when those foreign cases are on new areas of law with none or scanty local authorities; particularly on issues of Unfair Labour Practice or International Best Practice and on International Labour Standard under section 254C (1) (f) & (h) of the Constitution of the FRN, 1999 (As Amended). Therefore, decisions of foreign courts are no longer binding but only persuasive to Nigerian courts. See Pfizer Specialities Ltd v. Chyzob pharmacy Ltd  All FWLR (Pt.414) 1455 at 1489 paragraphs E-G. See also Araka v. Egbue  FWLR (Pt. 175) 507:  17 NWLR (Pt.848) 1; Air Via Ltd v. Oriental Airlines Ltd  All FWLR (Pt.212) 1565:  9 NWLR (Pt.878) 298." Per Denton-West JCA. In the circumstance, I find and hold that this Court is not bound by the decisions of these cited foreign authorities; they are only persuasive to the Court.
16. Secondly, counsel to the defendant referred the Court to unreported cases of Rev. Dr. V. C. Iwu v. Board of Trustees Assemblies of God, Nigeria Suit No: NICN/OW/41/2014 delivered on 12th of February, 2015 at NICN, Owerri Division and to Godwin Agbone v. Nulec Industries Ltd Suit No: NICN /LA/427/2012; delivered at NICN, Lagos Division. He even went as far as referring the court to this internet link: http://judgment.nicn.gov.ng/pdf.php?case_id=802;http://judgment.nicn.gov.ng/pdf.php?case_id=755.
This is contrary to the requirement of Order 45 Rule 3 (1) of NICN (Civil Procedure) Rules, 2017; which states that any party citing an unreported judgment of any Court in his address, whether it is the judgment of this court or not, is mandatorily required to submit along with the written address, the Certified True Copy of same. Since the applicant’s counsel failed to comply with this Rule in this circumstance, the cited unreported cases are hereby discountenanced in this Ruling.
17. On Whether This Court Has Power To Try This Case.
Jurisdiction of a court is the lifeline of any action. It is the blood that gives life to the survival of an action in a Court of law. Therefore, a Court without jurisdiction automatically lacks the competence to adjudicate on the case. Where a Court lacks jurisdiction then it has no power to make orders affecting the subsequent determination of the matter on its merit. Such Court also lacks the capacity to exercise any authority on the suit or to make pronounce on the rights of the parties in that suit; see the cases of Dada v. FRN  5 NWLR (Pt. 1506 CA 471 at 578-579. Para G-B and Effiong Ors v. Ebong  63 NLLR (Pt. 223) 310 at 340,
By their pleadings in paragraphs 25, 26 and 27 of the Statement of Facts, the claimants are claiming for damages they suffers in the eye of the general public as a result of the defendant’s behaviours or conducts during his time of employment with them.
19. In paragraphs (25 and 26 in particular) the claimants plead thus:
25. By reason of gross misconduct of the defendant on several occasions aforesaid, the claimants’ public image was diminished in the eye of the general public, particularly amongst the Claimants’ business clientele. The said gross misconduct of the Defendant consequently adversely affected the Claimants’ public relations and business interests, as the clients of the Claimants no longer feel safe, either to stay or to do business in the Claimants’ premises. Some of the said clientele of the Claimants have even shown remarkable reluctance to transact business with them.
26. The Claimants contend that its public relations and business predicaments would not have occurred, if the Claimants had not employed the Defendant and engaged the latter’s security services. The Claimants further contend that their said predicament was a direct result of the contract of employment between them and the Defendant.
20. In essence, the claimants are claiming special damages against the defendant, who was their employee for loss of their business’ image and reputation as a result of the defendant’s behaviour while in their employment. Such matter is incidental to labour issue because it arose against the conduct of the defendant, when he was an employee of the claimants/employers why in their employment. By the provisions of section 254 C (1) of the Constitution of the FRN, 1999 As Amended, this Court has power to try such issues. It is to be noted that the loss of the claimants’ image and reputation as a result of the alleged conduct of the defendant/its employee in the instant case is incidental to employment and labour matter and this is quite different from the tort of defamation argued by counsel to the defendant in paragraphs 6.9 to 6.11 of his address in support of the preliminary objection.
21. However; in paragraph 1 of the Statement of Facts, the claimants plead that they were the employers of the defendant between the 20th June, 2005 and the 14th February, 2017. They further pleaded the Defendant’s letter of employment and frontloaded it with their complaint at pages 32 to 35 of the record. A copy of this same letter is also relied on by the defendant as Exhibit 1 on this application; see pages 299 to 303 of the record. By the second to the last paragraph of this letter of employment dated 20th June, 2005 the parties agreed thus:
The jurisdiction of determination for the provisions of this contract of employment is the UK, consequently any controversy arising would be required to be resolved according to the provisions of UK law.
See in particular pages 35 and 302 of the record respectively.
22. With this clause in the contract of employment between the parties; they have voluntarily ousted the jurisdiction that this Court ordinarily has on employment matters or on those incidentals thereto; on this case, regardless of the fact that the issue arose on their employment relationship. By the terms and conditions of this contract of employment, this matter is to be resolved in UK and according to the provisions of UK law. In the circumstance, I find and hold that by the agreement of the parties on this contract of employment, this Court has no jurisdiction to resolve this matter as it is only in UK and according to the UK Law that their controversy in question can be resolved.
23. Is The Filing of this Matter An Abuse of Court Process?
In the case of Union Bank Plc. v. Olatunji  LPELR-CA/K/95/2011 per Abiru JCA succinctly states thus:
A common feature of all the cases on abuse of Court process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary and to interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action.
24. On whether the filing of this case is an abuse of Court process, the depositions in paragraphs 7 to 10 of the affidavit in support of this preliminary objection is instructive. They state:
7. On the 14th of February, 2017, the Defendant/Applicant’s employment was terminated and the Defendant/Applicant dismissed from the employ of Orlean Invest Africa (BVI) Ltd on grounds of alleged misconduct. Attached as Exhibits 4 and 5 are respectively, Orlean Invest Africa (BVI) Ltd’s letters termination and dismissal dated 14/02/2017.
8. In view of the circumstances surrounding his dismissal, the Defendant/Applicant invoked the provisions of the Contract of Employment and, on the 21st of July 2017 commenced proceedings at the London Central Employment Tribunals against his UK-based employers and the Claimants/Respondents on record in Claim No: 2207185/2017: Mr. Sajibu Krishnan v. Orlean Invest Management Resources Ltd & 2 Ors.
9. The Claimants/Respondents herein (respondents in the London Employment Tribunal) submitted to the Employment Tribunal and filed a joint Statement of Defence at the London Employment Tribunal.
10. On the 20th of December, 2017, barely few months after the Defendant/Applicant filed his claims at the London Employment Tribunal, the Claimants/Respondents herein launched the instant case, claiming 3 million US dollars ($3,000, 000.00) as special damages for alleged harm to the 1st Claimant’s business reputation purportedly arising from “the contract of employment between the 1st Claimant and the Defendant”.
25. In counter of these paragraphs, the claimants/respondents deposed in paragraphs 1 and 2 of their counter affidavit this way:
1. That the Defendant in an attempt to pre-empt the filing of this suit before this Honourable Court went to London and filed Claim No. 2207185/2017, Mr. Sajibu Krishnan vs. (1) Orlean Investment Management Resources Limited, (2) Orlean Invest Africa Limited, (3) Intels Nigeria Limited at the London Central Employment Tribunals.
2. The said suit/claim referred to in paragraph 1 above was dismissed on the 9th March, 2018, on the ground that the Claim or Suit was “not well-founded”. A copy of the judgment of the London Employment Tribunal is exhibited hereto and marked Exhibit A.
26. Nonetheless, on December 20, 2017; the claimants filed this action in this Court after they have responded to the case filed against them by the claimant in London and have even filed a joint Statement of Defence at the London Employment Tribunal. The defendant’s case against the claimants was filed on February 14, 2017. This means that this matter was filed during the pendency of the defendant’s case in London. Besides, the claimants are well aware of the jurisdiction clause in their contract of employment that they can only ventilate their grievances on this employment relationship in UK and according to UK Law. The claimants even frontloaded a copy of this contract of employment with their initiating processes. It is the cardinal principle of Nigerian Labour law that parties are bound by the terms and conditions expressly agreed to in their contract; see the case of West African Examination Counsel v. Oshionebo  55 NLLA (Pt. 187) 165 at 185 paragraphs A-D. The claimants knew that this case cannot be tried here in Nigeria and particularly in this Court; yet they went ahead to institute it. In the circumstance, I find that the claimants did not file this action to seek for justice, but they filed it merely to annoy, punish and irritate the defendant. Consequently, I hold that the claimants abused court’s process by filing this case in this court.
27. Can This Court Transfer The Matter To The Appropriate Court to handle it?
In paragraphs 4.08 and 4.09 of the claimants’ written address in opposition to this preliminary objection, their counsel submitted that in case the court finds that it has no jurisdiction to entertain the Claimants/Respondents’ suit, he urged the court to invoke the provision of section 24 (2) of the National Industrial Court Act, 2006 and Order 62, Rule 1 of the National Industrial Court (Civil Procedure) Rules, 2017 by transferring the case to the appropriate Court; being the High Court of Rivers State. I have found and held above that the Court that has jurisdiction to handle this dispute between the parties is in UK and which dispute are to be resolved according to the UK Law as agreed to by the parties.
The provisions of section 24 (2) of the National Industrial Court Act, 2006 and Order 62, Rule 1 of the National Industrial Court of Nigeria (C.P.) Rules, 2017 referred to by counsel to the claimants/respondents are to the effect that this Court has power to transfer to Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja as the case may be, any action that is wrongly filed in this Court and not to a Court in another Country like UK in this instance. Consequently, I find and hold that this Court has no power under the provisions of the NIC Act, 2006 and under the NICN (CP) Rules, 2017 to transfer this case to a Court in UK. Since the claimants have not satisfied the Court that it is the Rivers State High Court that has jurisdiction to try this case, I hereby decline to exercise my power of transferring the case as prayed. In the circumstance, this case is accordingly dismissed.
28. Whether or not the defendant/applicant is entitled to cost
Punitive damages/cost or exemplary damages/cost are damages/cost assessed and awarded in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit.
According to the law dictionary, https://thelawdictionary.org/punitive-damages/ punitive cost is synonymous with punitive damages and it means:
The costs that are awarded to a person due to negligence that has caused personal injury or damage to personal property. It is more than the item is worth but considerably so. It is a payment by the person to the injured party as a punishment for reckless behaviour.
Order 55 of the NICN (Civil Procedure) Rules, 2017 is on Cost generally. Order 55 Rules 1, 4 and 5 of the Rules of this Court are relevant in this case. They provide to the effect that this Court has discretion to award costs; the amount of which, is to be fixed at the time of judgment or when the order is being made. In awarding cost, the Court is enjoined to observe the principle that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.
29. I have held above that even though the issue in this case stemmed out of employment relationship on which this Court ordinarily has power to handle, this Court cannot adjudicate on this case because by the express agreement of the parties litigations on the employment relationship can only be activated in UK and according to UK Law. I further held that the claimants filed this case in this court to annoy, punish and irritate the defendant and not to seek justice; and so, held that the filing of this case in this Court is an abuse of court process. Consequently, I find and hold that the defendant is entitled to punitive cost in this case in order to deter the claimants/respondents and others from engaging in similar unwholesome conduct of filing a case in Court not to seek justice but to annoy, punish and irritate the other party.
30. On the whole I hold and order as follows:
i. I hold that even though the issue in this case is incidental to employment matter, on which this case ordinarily has jurisdiction to try, by agreement of the parties, jurisdiction on this matter has been ousted. Therefore, it is in UK and according to UK Law that this matter can be tried.
ii. I hold that this case is an abuse of court’s process because the claimants knew by their agreement with the defendant that the matter is not actionable in Nigeria; and so, they filed same not to seek justice but to annoy, punish and irritate the defendant in this case.
iii. I hold that this court has not power to transfer this case to any Court in UK, which has power to handle the case. Consequently, this Court declines to exercise its power under section 24 (2) of the National Industrial Court Act, 2006 and under Order 62 Rule 1 of the NICN(C.P.) Rules, 2017 by transferring the case to the High Court of Rivers State as the claimants has not satisfied this court that Rivers state High Court of Rivers State has jurisdiction to try the case.
iv. I hold that the defendant is entitled to punitive cost from the claimants in this case to serve as deterrent to the claimants and others from engaging in conduct similar to the one that formed the basis of this suit.
v. This case is accordingly dismissed for not being actionable in this Court and for abuse of Court’s process.
vi. The claimants are to pay N750,000.00 cost to the defendant within 30days from today.
Ruling is entered accordingly.
Hon. Justice F. I. Kola-Olalere