IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE - JUDGE
DATE: 16th September, 2019 - NICN/KN/56/2017
ALEXANDER IMHABEKHAI JOHN - CLAIMANT
1. FIRST CITY MONUMENT BANK PLC
2. PRIMROSE INVESTMENT LIMITED DEFENDANTS
3. FIRST CITY GROUP LIMITED
REPRESENTATIONS: Claimant Present. Defendant Absent
Danjuma Nyam, Esq. for the Claimant
M.N. Musa, Esq. for the Defendant
This suit was commenced by a Writ of summons filed on the 13th of December, 2017 in which the Claimant made the following claims against the Defendants:
1. A Declaration that the Defendant(s) acted unlawfully by not giving the Claimant the mandatory notice or payment in lieu of the notice of termination.
2. A Declaration that the Claimant is entitled to termination of employment benefits/or entitlements for the services he rendered to the Defendants for 11 years and 2 months and 2 weeks in accordance with the condition of service, terms of employment and the extant laws of the Federal Republic of Nigeria.
3. An Order of this Honourable Court that the Claimant be paid his termination benefits/entitlements in accordance with the extent laws of Federal Republic of Nigeria.
4. An Order of this Honourable Court directing the Defendant(s) jointly or severally to pay to the Claimant the sum of ₦5,000,000 (Five million naira only) as special damages, aggravated damages and/or general damages.
5. The sum of Two hundred and fifty thousand naira (₦250,000) only as cost for prosecuting this suit.
On the 29th of January, 2018 the Defendants filed a Motion on Notice brought pursuant to Order 17 Rule 1 and Order 57 Rule 4 of the National Industrial Court of Nigeria seeking the following:
1. An Order extending/enlarging time within which the Defendants may enter appearance out of time.
2. An Order striking out the name of First City Monument Bank Plc sued as the 1st Defendant in this action.
3. An Order setting aside service all originating processes issued and served on the 2nd and 3rd Defendants for being improper and incompetent; thereby denying the Court the requisite jurisdiction.
4. And for such further Order(s) as the Honourable Court may deem fit to make in the special and prevailing circumstances of the entire case.
The grounds upon which the application was brought are
1. The Solicitors to the Defendants were consulted on 25th January, 2018, long after the originating processes were improperly served on one of the branches of the 1st Defendant in Kano on 13th December, 2017.
2. The 1st Defendant did not employ the services of the Claimant; rather he was employed by the 2nd and 3rd Defendants.
3. In the absence of a contractual relationship between the 1st Defendant and the Claimant, an action cannot lie from the Claimant against the 1st Defendant.
4. The 2nd and 3rd Defendants have no operational and functional places of business in Kano, but Lagos where their respective registered offices are situated.
5. The 2nd and 3rd Defendants were wrongly and improperly served with the originating process on the 1st Defendant in one of its branches at No. 145, Murtala Mohammed way, Kano which is not even a party to the case.
6. The 1st, 2nd and 3rd Defendant are distinct and separate corporate entities without joint liabilities.
7. That for improper service on the 2nd and 3rd Defendants, this Court lacks the jurisdiction to adjudicate on this matter.
In the Written address a sole issue was raised thus: Whether this Honourable Court is empowered by law to grant prayers of the Defendants/Applicants?
In the arguments, Counsel for the Defendants submitted with respect to the second prayer that the Claimant was never employed by the 1st Defendant but rather the 2nd and 3rd Defendants who employed him respectively in 2003 and 2009. According to Counsel, the three Defendants are without doubt different subsisting corporate entities with different legal liabilities and assets thus, the contract of service between the Claimant and the 2nd and 3rd Defendants cannot be binding on the 1st Defendant who is not a party to it. On the third prayer, Counsel submitted that the 2nd and 3rd Defendants which are proper and necessary parties have been improperly and irregularly served with the originating processes. According to Counsel, the three Defendants which are different legal and corporate entities cannot be served on a branch of one of them and will suffice to be proper parties. Counsel maintained that the 1st Defendant is not and ought not to be a party to this action and therefore any service on it on behalf of the 2nd and 3rd Defendants is no service.
On the 7th of February, 2018, the Claimant filed a Counter-affidavit and a Written address formulating four issues for determination.
1. Whether or not the Defendants/Applicants are entitled for an extension/enlargement of time within which to enter appearance?
2. Whether or not the 1st Defendant/Applicant is a party to this suit?
3. Whether or not the service of originating process served on the 2nd and 3rd Defendants are proper and competent?
4. Whether the Defendants/Applicants are entitled to one or all relief(s) sought in their application before this Honourable Court?
In the arguments on issue one, Counsel submitted that the Defendants/Applicants have not furnished the Court with substantial reasons in their affidavit warranting the delay, therefore, they should not be indulged. On the second issue, Counsel submitted that the 1st Defendant/Applicant is a party because the 2nd and 3rd Defendants are Subsidiaries/Departments of the 1st Defendant, so none of the Defendants can hide under the guise of separate entities with separate liability to avoid responsibility/liability. Counsel then set out the provision of item No. 2 (MEDICAL ADMINISTRATION) of the 1st Defendant’s/Applicant’s Staff Handbook/Condition of service. According to Counsel, if all the Exhibits attached and marked as Exhibits “A”, “B1”, & “B2”, “C1 & C2” and Exhibit “D” are anything to come by then it can be safely submitted that the 1st Defendant is a proper party, necessary party or desirable party in this suit for the just determination of the suit. The case of SIFAX (NIG) VS MIGFO (NIG) LTD (2015) ALL FWLR (Pt. 803) at 1869 was cited in support. Counsel maintained that the 1st Defendant/Applicant cannot avoid liability if agency relationship is established, as they engaged the 2nd and 3rd Defendants/Applicants to recruit staff for and on behalf of the 1st Defendant/Applicant. On the third issue, Counsel submitted that the Originating process on the 2nd and 3rd Defendants/Applicants was competent. Counsel cited the provisions of Order 7 Rule 1 (1) (a) (h) & (i) of the National Industrial Court Rules and stated that if this Order is properly observed it will be clearly seen that the 2nd and 3rd Defendants/Applicants are properly served and such service is competent and effective because the originating processes are served in their principal or main places of business within the Federation and within the Judicial division which the dispute first arose, thereby vesting the Honourable Court with jurisdiction. According to Counsel, the 2nd and 3rd Defendants/Applicants know and are fully aware that there is a suit against them and have furnished the Court with a Memorandum of appearance dated 25th February, 2018 and that they did not depose in their affidavit that the mode of service on them caused them not to know that there is a pending suit against them in Court. On the fourth issue, Counsel submitted that the Defendants/Applicants are not entitled to any relief because the motion before this Court is not properly filed. According to Counsel, the Evidence Act, 2011 LFN prescribed the issues to be contained in an affidavit in Section 115 (1) (2) and (3) and that the Affidavit deposed to by Yahaya Hassan in support of the Defendants/Applicants is in contradiction of the provisions of the Evidence Act save for paragraph 1 and 2. Counsel then urged the Court to expunge paragraphs 3a, b, c, d, f and g and paragraph 4 respectively for contravening the provisions of the Evidence Act, 2011 and the Oaths Act presently in force.
I have had cause to go through the arguments for and against the Preliminary objection raised by the Defendants/Applicants and I find that given the nature of this suit and the Exhibits presently before the Court, the issues raised in the Preliminary objection particularly the issues as to whether First City Monument Bank Plc can be sued as the 1st Defendant in this action and also whether the service of all originating processes issued and served on the 2nd and 3rd Defendants are proper and competent; are such that cannot be determined without a proper and thorough examination of the case of both parties to this suit.
Therefore, I hold that the 1st Defendant continues on as a Defendant in this suit and the case shall proceed to trial.
Ruling is entered accordingly.
HON. JUSTICE E. D. E. ISELE