IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 10th July 2019 SUIT NO. NICN/LA/631/2018
MR. PHILIP ADELEKE ADEPOJU … CLAIMANT/RESPONDENT
LAGOS STATE POLYTECHNIC … DEFENDANT/APPLICANT
AdebusolaSijuadeOdokomaiya-Iyamu with TomisinOlogonorisaEsq.and Chiburem Chukwuma Esq.for the Claimant/Respondent
SeyiSowemimo, SAN with Maurice Chukwu for the Defendant/Applicant
1. By notice of preliminary dated and filed on 15th March 2018 brought pursuant to Order 17Rule 1 and 9 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and under the inherent jurisdiction of this Honourable Court, the Defendant/Applicant [“the Defendant”] prayed the Court foran order striking out this suit in its entirety for disclosing no reasonable cause of action against the Defendant and/or for want of jurisdiction; and for such further orders as this Honourable Court may deem fit to make in the circumstances on the following grounds:
[i] Section 210 of the 1999 Constitution of the Federal Republic of Nigeria [as amended] empowers States to, by its laws, regulate the payment of pensions.
[ii] The alleged December 2010 new salary structure relied upon by the Claimant inures only to the benefit of staff of the Defendant who are still in service. The Claimant had retired before the alleged new salary scheme.
b. The Claimant has not pleaded any material facts to sustain any claim against the Defendant.
[a] The Claimant has not pleaded material facts as to the basis for his calculation of his alleged additional pension and gratuity.
[b] The Claimant has not pleaded any material fact as to his last salary or earnings entitling him to the alleged additional gratuity and pension.
[c] The Claimant did not plead any material fact in relation to how he arrived at the various amount he brandishes as accruing to his [sic] from the office of the Defendant.
[d] The Defendant conceded in his claim that he had retired from the employment of the Defendant before the alleged new salary scheme was introduced in December 2010.
[e] The Claimant did not plead any material fact in relation to the alleged new salary structure.
The preliminary objection is supported with 4 paragraphs affidavit and a written address. Although served with the application, the Claimant did not file a counter affidavit or written address.
2. The application came up for hearing on 14th May 2019. The Defendant argued the preliminary objection and urged the Court to strike out the suit with substantial cost. Learned Counsel for the Claimant, Mrs. Odokomaiya-Iyamu, opposed the application for costs and argued the Defendant is not properly before the Court having not complied with Order 15 rule 1 of the Rules of this Court; and accordingly, the application is incompetent.The Defendant raised three issues for determination in its written address, to wit:
a. Whether in the light of the facts of this case, a reasonable cause of action against the Defendant/Applicant is disclosed.
b. Whether the Claimant can benefit of an alleged new salary scheme introduced in December 2010 but expressed to operate retroactively in relation to staff of the Defendant who are still in service.
c. Whether this suit is competent when the material facts to entitle the Claimant to a cause of action against the Defendant are not pleaded.
Arguing issue one, learned Counsel for the Defendant contended that a fundamental requirement for institution of an action by a party is the existence of a cause of action. He referred to paragraphs 12 to 15 of the statement of facts and submitted that the facts do not disclose a reasonable cause of action. On issue two, he submitted that under Nigerian law there exists a presumption against retroactivity of any enactment in civil matters and relied on Akpan v. Umah&Ors.  LPELR-7099[CA] 27-29 and Kotoye v. Saraki  LPEL-1708[SC] 30-31. He also submitted that on the authority of Kotoye v. Saraki, the presumption is that the alleged new salary structure is not applicable to staff who have retired from the service of the Defendant before its introduction.Canvassing issue three, he highlighted the conditions that must be present for a court to have jurisdiction to determine a matter and submitted that the non-fulfilment of any of the conditions automatically robs the Court of jurisdiction. It was further contended that the Claimant’s claims are premised on an alleged new salary scheme which was introduced after his retirement; and the failure of the Claimant to plead material facts is a fundamental non-compliance and fatal to the suit.
3. I have considered the submissions of learned Counsel for the parties and, in my respectful view, the issue for determination in this application is whether this suit as constituted discloses a reasonable cause of action to clothe this Court with jurisdiction to determine it? It is settled law that in determining whether this Court has jurisdiction to adjudicate on this suit or whether the suit discloses a cause of action or reasonable cause of action, the processes to consider are the Claimant’s processes; that is, the complaint, statement of facts and supporting documents. See Attorney General of Anambra State v. Attorney General of the Federation  LPELR-24343[SC] at pages 91-92, where the Supreme Court held that for the purpose of determining whether a Court has the requisite jurisdiction to entertain a matter before it, it is the duty of the Court to look at the statement of claim where one is required and had been filed and take the documents therein contained as true ex facie. For the purpose of this application, the Defendant is deemed to have admitted the facts averred in the statement of facts. The Defendant’s objection is on two grounds, to wit: non-disclosure of reasonable cause of action; and absence of material facts to sustain the claim, consequently robbing the Court of jurisdiction to determine the suit.
4. What constitutes a cause of action or reasonable cause of action has been judicially defined in a plethora of decided cases, and learned Counsel for the Defendant has referred to some of these cases. Suffice it to say that a cause of action comprises every fact which is material to be proved to enable the Claimant to succeed. It is a factual situation the existence of which entitles the Claimant to obtain from the Court a remedy against the Defendant. Pursuant to section 6[b] of the Constitution of the Federal Republic of Nigeria, 1999 as amended, a cause of action has been held to include the question as to the civil rights and obligations of the Claimant founding the action to be determined by the Court in favour of one party against the other. See Chief Dr. Irene Thomas & 5Ors. v. The Most Reverend Timothy OmotayoOlufosoye  LPELR-3237[SC] at pages 22-23. A reasonable cause of action is thus a cause of action with some chance of success when only the allegations of the Claimant are considered. In so far as the statement of facts disclose some cause of action or raise some questions fit to be decided by the Court, the mere fact that the case is weak and not likely to succeed is not a ground for striking it out. See Chief Dr. Irene Thomas & 5Ors. v. The Most Reverend Timothy OmotayoOlufosoye [supra] at pages 23-24 and Oba Ilufemiloye Adesola & Anor. v. Oba OludeleFalade-Fatila&Ors.  LPELR-23800[CA] at pages 39-40.
5. Applying this principle to this case, can it be said that the statement of facts does not raise some questions fit to be decided by this Court? I do not think so. A review of the statement of facts will show that it raises a substantial question which this Court ought to look into. It is indisputable that there was an employer and employee relationship between the Claimant and the Defendant. It is also not in doubt that the Claimant’s pension was stopped and reinstated. Whether a salary increase in December 2010 but made to take effect in June 2009 inures to the benefit of the Claimant is a matter that can only be decided after this Court has heard evidence. These are facts, in my view, which this Court should look into and which if proved could give rise to a remedy against the Defendant. I therefore find and hold that this suit discloses a reasonable cause of action. In the words of Oguntade, J.C.A., [as he then was] in Henry Stephens Engineering Company Ltd. v. S.A. Yakubu [Nigeria] Limited  LPELR-10204[CA] at pages 18-19, our judicial system will never permit a Claimant to be driven from the judgment seat without any Court having considered his right to be heard, excepting in cases where the cause of action is obviously and incontestably bad. The learned jurist posited that the jurisdiction to peremptorily strike out a case on the ground that the Claimant’s statement of claim discloses no cause of action must be cautiously and slowly exercised. It has the potential of denying a Claimant the right to be heard. I completely agree. Whether the Claimant will succeed or not is not a relevant consideration at this stage.
6. On the issue of non-compliance raised by the Claimant, Order 15 rule 1 of the rules of this Court is clear on the proper steps a Defendant should take if he intends to defend a suit. The Defendant must file a statement of defence incorporating the preliminary objection together with his witness deposition within 14 days of receipt of the originating processes. I have looked at the Defendant’s processes and observe that the Defendant was served with the originating processes on 18th December 2018. The Defendant entered appearance on 25th January 2019 and filed its statement of defence without accompanying witness deposition on 8th March 2019. These processes were filed out of time and no application for enlargement of time has been filed. Rules of Court are meant to be obeyed and not treated with contempt and this Court has a duty to ensure that the rules are obeyed by the parties. See Alhaji Bala Usman v. Tamadena& Company Ltd &Ors.  LPELR-40376[CA] 14-15. For this reason, I agree with the submission of learned Counsel for the Claimant and hold that this application is incompetent.
7. In the light of the foregoing, I find no merit in the preliminary objection and it is hereby dismissed. Ruling is entered accordingly. There shall be no order as to cost.
IKECHI GERALD NWENEKA