IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: June 20, 2019 Suit No: NICN/PHC/119/2018
Gray Instant Solutions Limited --------------------------- Claimant
Mrs. Julie Idahosa
Port Harcourt Electricity ---------------------------- Defendants
Mr. O. Wale (SAN) with A.A. Willam-Chukwu (Miss), for the Claimant/Respondent.
A.S. Akomas for the 1st Defendant.
Harry Ukaejiofor for the 2nd Defendant/Applicant
On October 22, 2018 the claimant sued the defendants for the following reliefs:
A Declaration that Clause 11(a) on Confidentiality, Clause 11(b) on Non-Solicitation Agreement and Clause 11(c) on Non-Recruit Agreement as stated in the Contract of Employment between the Claimant and 1st Defendant dated 22 May 2017 are still valid and binding on the 1st Defendant.
A Declaration that the actions of the 1st Defendant including directly or indirectly, soliciting in any manner whatsoever the 2nd Defendant constitutes a breach of Clause 11(b) on Non-Solicitation Agreement and/or Clause 11(c) on Non-Recruit Agreement of the Contract of Employment between the Claimant and 1st Defendant dated 22 May 2017.
A Declaration that the actions of the 1st Defendant including directly or indirectly advising, recruiting and/or disclosing confidential and proprietary information as well as trade secrets of the Claimant to the 2nd Defendant constitutes a breach of Clause 11(b) on Non-Solicitation Agreement and/or Clause 11(c) on Non-Recruit Agreement of the Contract of Employment between the Claimant and 1st Defendant dated 22 May 2017.
An Order of Perpetual Injunction restraining the 1st Defendant from directly or indirectly soliciting the Clients of the claimant in any manner whatsoever, including the 2nd Defendant.
An Order of Perpetual Injunction restraining the 1st Defendant from advising and/or providing information of the Claimant (whether of a confidential or proprietary nature or not) to any Customer or Client of the Claimant including the 2nd Defendant.
An Order of perpetual Injunction restraining the 1st Defendant from directly or indirectly recruiting any staff of the Claimant.
An Order of perpetual Injunction restraining the 2nd Defendant, its officers, agents, employees or any other person natural or artificial whomsoever claiming or acting through the 2nd Defendant from discussing, dealing, talking, meeting, liaising conversing with the 1st Defendant especially as it relates to the business between the Claimant and the 2nd Defendant as covered by the AGREEMENT.
An Order of perpetual Injunction restraining the 2nd Defendant, its officers, agents, employees or any other person natural or artificial whomsoever claiming or acting through the 2nd Defendant from giving the 1st Defendant the cash collection business as covered by the AGREEMENT.
The claimant also filed all other initiating processes together with this complaint in line with the Rules of this Court. In response, the defendants entered appearance and filed their defence processes in line with the Rules of this Court.
On December 3, 2018 counsel to the 2nd defendant filed a notice of Preliminary Objection brought pursuant to Order 17 & Order 18 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and Sections 254C & 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, praying for the following orders:
An Order of this Honourable Court striking out this suit, as against the 2nd Defendant/Applicant for want of jurisdiction.
An Order of this Honourable Court dismissing this suit, with costs in favour of the 2nd Defendant/Applicant, for being an abuse of court process.
The notice of Preliminary Objection is based on seven (7) grounds and it is supported with a 5 paragraphed affidavit, deposed to by one Ademide Ademola, a legal Practitioner in the law firm of Ukiri & Lijadu. The notice is also supported with a written address wherein counsel to the 2nd defendant formulated the issue for determination as:
Whether this Honourable Court ought to grant this application as prayed.
Arguing the said issue, counsel submitted that it is the law that before the Court can hear or determine any matter, the Court must have the required jurisdiction to handle same. He went on that jurisdiction is determined by the nature of a claimant’s claim, referring the Court to the cases of Madukolu v. Nkemdilim  2 SCNLR 341; Nwankwo v. Yar’adua  12 NWLR (Pt. 1209) p. 518, at pg. 560, paragraphs E-H; Skenconsult v. Ukey  1 SC pg. 6; Matthew Ikpekpe v. Warri Refinery & Petrochemical Company Limited & Anor.  LPELR-44471(SC) Adeyemi v. Opeyori  10 NSCC P.455 at 462 line 41 and Attorney -General of Kwara State v. Olawale  3 NWLR (Pt. 281) pg. 253 at 262 paragraph A.
Counsel submitted that by the statement of facts and the reliefs sought by the claimant in this case, the claimant merely seeks to indirectly enforce the terms of its payment collection services Agreement with the 2nd Defendant as opposed to the Contract of Employment with the 1st Defendant, which had been terminated over a year ago as pleaded in its processes before the Court. Counsel further submitted that the claims against the 2nd Defendant cannot be maintained before this Court, considering the provisions of sections 254C & 272 of the Constitution of the Federal Republic of Nigeria 1999 as Amended. Counsel went on that by the provisions of the said Constitution, the subject matter of this suit against the 2nd Defendant/Applicant is firmly reserved for the High Court of a State and not this Court; citing Gafar v. Govt. of Kwara State  4 NWLR (Pt.1024) 375 & Elebanjo v. Dawodu 15 NWLR (Pt. 1001) pg. 76.
Counsel continued that once the Court determines that it has no jurisdiction on this suit, it need not proceed further to consider any other issue in the case since the Court no longer has power to do so. He submitted that the proper course of action is to strike out the suit, citing Umannah v. Obong Victor Attah  17 NWLR (Pt.1009) page 503 at 525 paragraphs D-F and Fasakin Foods Nig. Ltd v. Martins Babatunde Shosanya  10 NWLR (Pt.987) 126.
In addition, counsel submitted that the manner of suing the 2nd Defendant/Applicant in this case clearly is an abuse of Court process. He went on that the improper steps taken by the Claimant in this suit constitute a gross abuse of process deserving of a dismissal of this matter in limine and afortiori, a grant of the present application as prayed; citing TSA Industries Ltd. v. FBN Plc. (No1)  124 NWLR (Pt. 1320) page 345 A-C and Messrs N.V. Scheep & Anor v. The MV Araz & Anor 15 NWLR (Pt. 1691) 622 page 644 paragraph A-D.
Responding to this application, counsel to the claimant filed a 6 paragraphed counter affidavit deposed to by one Osaze Jesuorobo together with a written address wherein counsel formulated issues for determination as:
Whether based on the facts disclosed and the claims stated in the Claimant/Respondent’s Originating Processes dated 22 October, 2018 this Honourable Court has jurisdiction to adjudicate this Suit.
Whether the Originating Processes dated 22 October, 2018 is an abuse of Court process.
Arguing issue one, counsel submitted that by the provisions of section 254C of the Constitution of the FRN, 1999 (As Amended), the National Industrial Court has exclusive jurisdiction over civil causes and matters relating to or connected with any employment matter and matters incidental thereto or connected with citing the case of; citing African Newspapers (Nig.) Ltd. v. FRN  2 NWLR (Pt. 6) 137 at 159 – 160; Kanu v. Asuzu & Anor  LPELR-24376(CA) and NLNG Ltd. v. Green & Ors.  LPELR-4600(CA) pgs. 16 – 17 Paragraphs B – A and NDIC v. Odigie  LPELR-9289 (CA).
Counsel submitted that it is the combination of facts and the claims as stated in the Claimant/Respondent’s Originating Processes of October 22, 2018 that the Court must review and consider to see if the matters canvassed therein are matters relating to, connected with or incidental thereto employment. He went on that the 2nd Defendant/Applicant admited that this Court has jurisdiction as it relates to the 1st Defendant/Respondent as clearly stated in paragraphs 3.18 of its Written Address of December 3, 2018. To counsel, the averments in paragraphs 1 to 10 of the claimant’s statement of facts are matters “relating to” or “connected with” the employment of the 1st Defendant/Respondent and matters “incidental thereto” or “connected with”. He submitted that a cumulative reading of the reliefs sought particularly against the 2nd Defendant/Applicant reveal that they are matters “relating to”, “connected with” or “incidental thereto” the employment of the 1st Defendant/Respondent. He maintained that the injunctions sought are simply an enforcement of the rights of the Claimant/Respondent under the 1st Defendant/Respondent’s contract of employment.
Furthermore, counsel submitted that the 2nd Defendant/Applicant is a necessary party and that this suit cannot be decided without it being a party to it. He continued that the 2nd Defendant/Applicant has a very cogent question to answer in this suit with respect to establishing the allegation of solicitation and divulging of confidential information on the part of the 1st Defendant/Respondent, which would bring about the conclusive adjudication of this suit; citing Green v. Green  2 N.S.C.C. at page 1115 at 1123; Onochie v. Odogwu  6 NWLR (Pt. 975) page 65 at 89 paragraph B. Finally on this issue, counsel submitted that this Court does not have the power to strike out this suit since the mere allegation is that it should have been instituted at the High Court, but to transfer the case to the appropriate Court, relying on Section 24 (2) of the National Industrial Court Act, 2006.
Arguing issue 2, counsel submitted that while abuse of court process “involves circumstances and situations of infinite variety, this Suit is by no stretch of imagination an abuse of court process, citing CBN v. Ahmed & Ors  LPELR-837(SC) at page 62-63; Abubakar v. Bebeji Oil and Allied Products Ltd & Ors  LPELR-55(SC) at page 62 – 63 Paragraphs E – D and urged the Court to so hold.
I have gone through the facts of this case as endorsed on the complaint and as pleaded in the statement of facts. I have also read the issues as raised in the preliminary objection and its counter; from all of this, I am of the considered view that the questions to resolve in this preliminary objection are as follows:
Whether or not the Court can strike out this suit against the 2nd Defendant/Applicant for want of jurisdiction.
Whether or not the Originating Processes is an abuse of Court process.
The law is that, Jurisdiction of a Court on a matter is a very fundamental issue. As a threshold issue, it should be determined at the earliest stage of the proceedings as soon as it is raised. This is because, if a Court has no jurisdiction to hear and determine a case, its proceedings on that case remain a nullity ab initio, no matter how well conducted and decided. The reason being that, a defect in competence is not only intrinsic but extrinsic to the entire process of adjudication; see the cases of Anyanwu v. Ogunewe  8 NWLR (Pt. 1410) SC 437 at 476 paragraph G-H ; UBA. Plc. v. J.M & Co., (Nig.) Ltd.  5 NWLR (Pt. 1504) 171 at 180 paragraph A and Effiong & Ors v. Ebong  63 NLLR (Pt. 223) 310 at 340, Per Okri JCA. As the Supreme Court puts it in the case of Gabriel Ativie v. Kabelmetal (Nig.) Ltd  LPELR-591(SC);  10 NWLR (Pt. 1095) 399;  5 - 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. In other words, the Court’s jurisdiction is determined from the claimant’s reliefs.
On whether this Court has jurisdiction on the claimant’s case against the 2nd defendant
As endorsed in paragraphs vii & viii of the complaint and as pleaded by the claimant in paragraphs 29 g. & h. of the statement of facts; the claimant is seeking against the 2nd defendant:
An Order of perpetual Injunction restraining the 2nd Defendant, its officers, agents, employees or any other person natural or artificial whomsoever claiming or acting through the 2nd Defendant from discussing, dealing, talking, meeting, liaising and conversing with the 1st Defendant especially as it relates to the business between the Claimant and the 2nd Defendant as covered by ‘the AGREEMENT’.
An Order of perpetual Injunction restraining the 2nd Defendant, its officers, agents, employees or any other person natural or artificial whomsoever claiming or acting through the 2nd Defendant from giving the 1st Defendant the cash collection business as covered by ‘the AGREEMENT’.
In paragraph 18 of the Statement of Facts, the claimant pleaded concerning the Agreement between it and the 2nd defendant this way:
18. The Claimant avers that while the 1st Defendant was in the employ of the Claimant; the Claimant finalized a contract with the 2nd Defendant. Thus, via the Agreement between the Claimant and the 2nd Defendant executed on 14 August, 2015 (“the AGREEMENT”), the 2nd Defendant outsourced its collection services including cash offices & services in Rivers State, Bayelsa State, Akwa-Ibom State and Cross River State (for 7 years from the date of execution) to the Claimant. Pursuant to the terms of the said Agreement, the Claimant undertook the operations of all the 2nd Defendant’s cash offices and performed bill payment collection services for the 2nd Defendant.
In essence; therefore, the contract between the claimant and the 2nd defendant is the contract for service as opposed to contract of service or contract of employment that this Court has jurisdiction to handle by virtue of the provisions of section 254C (1) of the Constitution of the FRN, 1999 (As Amended). Conversely, I find that this Court does not have jurisdiction to adjudicate on this contract for service between the claimant and the 2nd defendant termed “the Agreement” and I so hold. Therefore, I further hold that this Court does not have jurisdiction to interpret “the Agreement” in question between the claimant and the 2nd defendant in this case. I again hold that this Court has no power to make any order of perpetual injunction against the 2nd defendant under the said agreement as claimed in reliefs vii & viii; endorsed on the claimant’s complaint. Additionally, I hold that there is no employment relationship between the claimant and the 2nd defendant so as to make the 2nd defendant a proper party in this case and before this Court. Consequently, the vii & viii reliefs of the claimant against the 2nd defendant are accordingly struck out for lack of jurisdiction. Likewise, the name of the 2nd defendant, Port Harcourt Electricity Distribution Company is struck out as a party in this case for absence of enforceable cause of action against it from the claimant before this Court.
On whether the Originating Processes are abuse of Court process
Abuse of Court process has many definitions; therefore, the peculiarities of the circumstances in a particular case would determine whether the Court process has been abused or not. However, a common feature of all the existing definitions is that the term or phrase ‘abuse of court process’ applies to proceedings, which are wanting in bona fide. Such cases are frivolous, vexatious and they involve improper use of the rules of practice and procedures of the Court with intent to harass or embarrass, intimidate, irritate and or annoy a party. This involves some deliberateness on the part of the claimant to misuse or pervert the smooth orderly and expeditious hearing and determination of matters as provided in the rules of court. It also involves instituting multiplicity of actions, on a frolic act of forum shopping, i.e. seeking for a favourable court to entertain a matter. See its definition by the Supreme Court in Allanah & Ors v. Kpolokwu & Ors  LPELR-40724(SC); Dingyadi v. INEC  44 NSCQR 301 at 340; Chief Charlie Amachree v. Chief (Prof.) T.J. Princewill & Ors  LPELR- CA/PH/182/2004:  12 NWLR (Pt. 1098) Pg. 345. See also Ikine v. Edjerode  12 SC (Pt. 11) 94; CBN v. Ahmed  5 SC (Pt. 11) 146; Ode v. Balogun  10 NWLR (Pt. 622) 214 and Amaefuna v. The State  2 NWLR (Pt.775) 156.
It is worthy of note that from the 5 paragraphed affidavit in support of this notice of preliminary objection, the 2nd defendant did not show any evidence to buttress its assertion that this case is an abuse of Court process. In the same vein, it is my finding and holding that the 2nd defendant is not a necessary party in this case as contemplated by law because, the case between the claimant and the 1st defendant can be fairly dealt with and the question therein properly settled in its absence; just like the other staff of the claimant that the 1st defendant is alleged to be recruiting, see the case of O.K Contact Point Ltd. v. Progress Bank  5 NWLR (Pt. 604) 631 CA at page 634 para A-B. In the circumstance, I hold that the filing of this case is not an abuse of Court process; neither is the 2nd defendant a necessary party to this case. This 2nd prayer on the Preliminary Objection fails for lack of proof and it is accordingly dismissed.
Ruling is entered accordingly. The claimant is to pay N60,000.00 cost to the 2nd defendant.
Hon. Justice F. I. Kola-Olalere